Kopel's Corner Weblog July-September 2009 Archive

Background reading for Supreme Court’s new 14th/2d Amendment case

David Kopel • September 30, 2009 8:27 am

The website for all the Chicago case filings is here. For 19th century history, Stephen Halbrook is by far the most important scholar. His articles include: The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, Northern Kentucky Law Review (2002); Personal Security, Personal Liberty, and The Constitutional Right to Bear Arms: Visions of the Framers of the Fourteenth Amendment, Seton Hall Constitutional Journal (1995); The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, University of Detroit Mercy Law Review (1999); and (co-authored with Cynthia Leonardatos and me), Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century–and Today, Journal of Law and Policy (2001).

The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.

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Does CHL ban in churches violate the First Amendment?

David Kopel • September 29, 2009 8:30 pm

An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and  safety class.  Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”

In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas concealed handgun license (CHL) statute also bans CHL in some other locations. The opinion suggests that what these disparate places have in common is that they are likely to be crowded.

There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)

The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding.  The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.

Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.

Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.

Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accommodate their twin desires for “no guns” and “no signs” and  that this accommodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.

One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred.   In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.

Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Theravada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.

The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life.   The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.

Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.

Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.

None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.

Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.

Update: In response to various thoughtful comments…Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL. 

Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5-73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied together by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.

Categories: Guns, Property Rights, Religion and the Law     69 Comments  


Legal Scholarship in an Electronic Age

David Kopel • September 29, 2009 4:10 pm

That’s the topic of a lunchtime symposium at Denver University, Sturm College of Law, on Wednesday, Sept. 30. Details here. Presenters will be Professors Alan Chen,  Sam Kamin, and me. Kamin is the author of, inter alia, How the Blogs Saved Law School: Why a Diversity of Voices Will Undermine the U.S. News Rankings. The symposium is the first public event for the DU Law Review’s on-line supplement, DUProcess; each of the speakers will write a short item about blogs and academia for DUProcess.

Categories: Law schools     3 Comments


Bloggers agree: Health bill likely to pass. Split on Obama foreign policy grade:

David Kopel • September 27, 2009 7:42 pm

This week’s National Journal poll of political bloggers asked “What is the most likely outcome of President Obama’s health care reform initiative?” Ninety-three percent of the Left and 82 percent of the Right expected either “major” or “scaled back” legislation to be enacted in 2009. The Left was roughly split between major and scaled back. I was part of the only 12% on the Right who expect some major. I wrote: “‘Scaled back’ in the sense of no public option. The legislation will still impose huge, and mostly harmful, changes on American health care.”

The second question asked for a grade on President Obama’s foreign policy so far. The Left gave him a B, while the Right awarded a D-.  I voted for D, and explained: “From Poland to Israel to Iran to Honduras, the President has made it clear that it is safer to be America’s enemy than its friend. His crackdown on the pro-democracy government in Honduras for obeying the Honduran Constitution, and his active support for Zelaya, who is trying to become another Castro/Chavez, is despicable. Obama is much more popular than Bush among Belgians and many other Western Europeans, but Obama has been unable to translate that popularity into any results for American diplomacy.”

[Note to commenters: It appears to me that comments have to be specifically approved before they become visible. There are several comments which I have "approved", but which are not displaying. I don't know what the problem is. Presumably we eventually figure out how to use WordPress. ]

Categories: Executive Branch, Politics     31 Comments


Some Legislators _Do_ Read Every Bill before Voting:

David Kopel • September 23, 2009 7:34 pm

My father Jerry Kopel served 22 years in the Colorado House of Representatives. He represented part of northeast Denver, as a Democrat. Among the posts he held were Judiciary Committee Chairman and Assistant Minority Leader. (His website is here.) He did read every bill before voting on it. Sometimes he was the only legislator who did so; at other times during his tenure, there were a few others who did so, including Republican Tim Foster.

For 18 of the 22 years, he was a member of the minority party. By actually knowing what was in the bills, he was able to offer amendments to improve the bills, take out over-reaching provisions, and so on. More importantly, because he knew what the bills contained, he was not dependent on lobbyists to describe the bills to him. This was particularly important if the lobbying power on one side of a bill was very lopsided.

For example, in 1990 a bill to significantly expand Colorado’s already-bad civil forfeiture laws was introduced. It passed the House Judiciary Committee 12-1. (Although my father served for many years on the Judiciary Committee, by that time he had switched to the Business Affairs Committee.) The weekend before it was due to come up on the floor of the House for a vote, he read the forfeiture bill. Speaking on the floor of the House, he showed the legislators that the bill was far more onerous than its lobbyists had claimed. The bill was defeated by a solid bi-partisan majority.

The Colorado Constitution requires that each bill shall only concern a single subject, which shall be clearly expressed in the title. This provision is sometimes stretched to the limit (and beyond) with broad titles such as “Concerning criminal justice” (the typical title for the District Attorneys’ annual omnibus wish list). Even so, the single subject rule does help make legislation more comprehensible for citizen legislators.

One other data point on reading bills: When the NAFTA legislation was moving through Congress, Ralph Nader challenged the Senators and Representatives to read the bill, because, Nader said, reading it would change their minds. Colorado Republican Senator Hank Brown responded by reading the massive bill. As a result, he said, he changed his mind, and voted against it.

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Independence Institute cert. petition in campaign finance case:

David Kopel • September 22, 2009 5:15 pm

The Independence Institute, where I work, is a think tank that speaks on a wide variety of issues. In 2005, we produced extensive research and public information about Colorado referenda C and D. (C was the largest tax increase in state history, and D was a debt increase. C passed and D was defeated.) The Institute was harassed by a complaint filed by one of the proponents, which automatically triggered an administrative hearing under Colorado’s very restrictive campaign finance laws. The Independence Institute ultimately prevailed, but only at the cost of a major distraction of time and money shortly before what turned out to be a close election. The Institute for Justice (based in D.C.) has filed a First and Fourteenth Amendment challenge to the Colorado law. The questions presented are:

1. Whether the First and Fourteenth Amendments forbid Colorado from imposing registration,
administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose.

2. Whether Colorado’s disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association.

The IJ argues that the Colorado Court of Appeals ruling regarding both items are contrary to the U.S. Supreme Court’s precedents. The cert. petition is here, and case background is here. The brief of the Colorado Secretary of State is due October 2.

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The Second Amendment in the Living Constitution

David Kopel • September 22, 2009 1:56 pm

That’s the topic of a recent article I wrote for America’s 1st Freedom, one of the NRA magazines. I argue that if “living Constitution” means “shared and evolving beliefs about rights and powers” rather than “the whim of the particular judge,” then the argument for a robust Second Amendment under living constitutionalism is very strong.

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[Note: The changed typefaces reflect the Volokh Conspiracy's move from Powerblogs to WordPress in late September 2009.]


[David Kopel, September 21, 2009 at 4:19pm] Trackbacks

Buddhists and Moslems arm against terrorists

StrategyPage, which is always one of the best websites for information on military activities around the world, reports on the terrorist war going in southern Thailand:
 

The Moslem south is turning into the Wild West. There are more guns per capita among the two million southerners, than anywhere else in the country. The 20 percent of the southerners who are not Moslem are particularly well armed, with shotguns, rifles, pistols and even some automatic weapons. Most of the guns carried by non-Moslems are legal, for defense against Islamic terrorists. But many Moslems have legal weapons as well, also for defense against Islamic radicals (who are increasingly violent against Moslems they deem disloyal.) The police are slowly winning, as they have done in the past. But Islamic radicalism is popular among many of the young men, so the violence will continue for a while, despite the opposition of most Thai Moslems. Thus violence has been increasing in the south, with 27 bombings and eight arson attacks in the past month. In that period, there were a hundred terrorist attacks, which left 51 dead and 83 wounded.
 83 Comments

[David Kopel, September 18, 2009 at 12:20pm] Trackbacks

Bloggers polls: Health care, Tea parties, and commentators:

This week, the National Journal poll of political bloggers asked a bonus question, about which "columnists, bloggers and television or radio commentators most helped to shape their opinion or worldview." For right-leaning bloggers, the top five were, in order: Charles Krauthammer, Rush Limbaugh, Mark Steyn, Jonah Goldberg, and Eugene Volokh (!). All hail the Master of the Conspiracy.

On the left, the winners were Paul Krugman, Rachel Maddow, Frank Rich, Bill Moyers, and Digby.

As for the regular questions, the first was "How much will Democrats be helped or hurt in the midterm elections if Congress doesn't pass major health care reform legislation?" My answer was "Helped a lot." Over half the Right, but only 6% of the Left, thought that Democrats would be helped even a little.

My answer focused not on Democrats in general, but Democrats in swing districts: "There are plenty of reforms which would cost little and give people more choices -- such as allowing interstate competition in health insurance, or giving Medicare/Medicaid/etc. recipients the option of receiving vouchers to use as they see fit. These reforms would probably be supported by a broad spectrum of voters. However, if 'reform' is defined as federal micromanagement of private insurance, and greater federal intrusion into personal health care choices, then 'reform' will probably be perilous for Democrats in purple or red districts."

The second regular question "How closely should the Republican Party align itself with the Tea Party movement?" A majority of both the Left and the Right voted for at least "somewhat closely." I was among the 50% of the Right who voted for "very closely." As I explained, I would have said the same thing about the Democrats: "The Republicans -- and the Democrats -- should crack down on the institutionalized corruption in their own party, and should work hard to balance the budget, end the kleptocratic redistribution of wealth from taxpayers to politically favored businesses, and sharply reduce federal meddling in people's personal lives. Whichever party does that will earn the support of the Tea Party activists, and the gratitude of generations to come."93 Comments


[David Kopel, September 16, 2009 at 2:48pm] Trackbacks

Senate votes to allow guns in checked Amtrak baggage:

Today the Senate voted 68-30 to require that Amtrak allow passengers to transport unloaded firearms in checked luggage, in the same manner as currently allowed for airline passengers. The vote for was for an amendment (SA 2366) to the Transportation Housing and Urban Development appropriations bill. The amendment was sponsored by Sen. Roger Wicker. If the amendment becomes law, it will undo a policy change which Amtrak imposed in 2001.33 Comments


[David Kopel, September 16, 2009 at 1:47pm] Trackbacks

Middle District of Georgia Rejects Birther Lawsuit:

Decision in Rhodes v. MacDonald, dismissal for failure to state a claim. It seems to me to be a well-reasoned opinion.205 Comments


[David Kopel, September 15, 2009 at 1:28pm] Trackbacks

Hurray for President Obama, our Armed Forces, and the Huffington Post:

1. Calling Kanye West a "jackass"--in what was supposed to be an off-air private comment but which was widely reported. It would have been inappropriate for him to use the word in an official statement, but the reporting of his comment sends a good message about the importance of appropriate personal conduct. As did his speech to schoolchildren last week.

2. Acting pursuant to a presidential order, U.S. forces have killed the Somali terrorist Ali Nabhan. He is believed to be an al Qaeda commander responsible for the 1998 bombings of the U.S. embassies in Kenya and Tanzania.

3. The Huffington Post, in its new Rocky Mountain section, is now publishing my Independence Institute colleague Jessica Corry (and her husband Rob) to offer some intellectual diversity.69 Comments


[David Kopel, September 14, 2009 at 6:46pm] Trackbacks

Outdoor technology bleg:

What is the best GPS for use in outdoor activities such as hiking, hunting, or fishing?42 Comments


[David Kopel, September 11, 2009 at 11:42am] Trackbacks

Left/Right could support health bill with tort reform. Lefts wants out of Afghanistan; Right wants in:

This week's National Journal poll of political bloggers asked, "Could you see yourself supporting health care reform if it included tort reform"? Sixty-two percent of the Right and 50% of the Left said "yes." (With 36% "no" and 14% maybe.) The Right actually liked tort reform, while the Left was willing to accept it as an unpleasant price to pay.

I wrote: "Sure. Depends on what else is in the bill. The more that it removes restrictions on consumer choice, without imposing new taxes or additional spending, the better."

Question 2 was "Do you want U.S. troop levels in Afghanistan to rise, fall, or hold fairly steady in the coming months?" Sixty-three percent of the Right wanted a rise, while 72% of the Left wanted a fall. I was pro-rise: ""Losing Afghanistan to the Taliban would be a catastrophe. Vietnam was an important strategic loss, but Vietnam did not turn into a base for terrorist attacks on Americans. The dominos that fell with Vietnam did not include countries with nuclear arsenals which might be turned over to terrorists for attacks on the West. Support the president!"49 Comments


[David Kopel, September 11, 2009 at 1:03am] Trackbacks

Conservatives and the civil rights movement:

Tim Wise is a writer who is considered by many people to be an insightful expert on issues regarding race. However, in a recent essay, he displays a significant gap in his knowledge about the American civil rights movement. Expressing his dismay about the criticism of Van Jones, Wise concludes:

Make no mistake, had they been old enough in those days, Beck and every modern-day movement conservative would have stood with the segregationists, with the bigots, with the mobs who burned the buses carrying freedom riders. They would have stood with the police in Philadelphia, Mississippi, even as they orchestrated the killing of Andrew Goodman, James Chaney and Mickey Schwerner. They would have stood with Bull Connor in Birmingham. How do we know? Easy. Because not one prominent conservative spokesperson of that time did the opposite. Not one. That's who they are. And the minute you forget that, the minute you insist on treating them better than they would treat you, the minute you insist on playing by rules that they refuse to as much as acknowledge, all is lost. They do not believe in democracy. They believe in power. White power.
Yet in fact, actor Charlton Heston, who later became President of National Rifle Association (and thus a leading "modern-day movement conservative" according to many people) marched with Martin Luther King.

Undeniably one of the most prominent conservatives of the sixties with Senator Everett McKinley Dirksen (R-Il.), the Senate minority leader. He played an indispensible, leading role in the passage of the Civil Rights Act of 1964. Thanks to Dirksen's wily maneuvering, for the first time in history a filibuster of a civil rights bill was broken. Republican Senators voted 27-6 for cloture. In the House, Republicans voted for the bill 138 to 34.

I have not been able to locate an on-line roll call of the votes of all the Congresspersons. Although both parties in 1964 were more ideologically diverse than they are today, I suspect that in the 80% of House Republicans who voted yes, there must have been many solid conservatives.

This document (page 1 of the House roll call) shows an affirmative vote by Rep. John Ashbrook (R-Ohio) who was so conservative that in 1972 he ran against incumbent President Richard Nixon for Republican nomination, challenging him from the Right. Ashbrook was a founding father of the modern conservative movement: "chairman of the Young Republican National Federation from 1957 to 1959; one of the founders of the American Conservative Union, serving as chairman from 1966 to 1971; and on the Steering Committee of the Committee of One Million against the Admission of Communist China to the United Nations, whose campaign began in 1953."

I was able to find a complete list of Congresspersons in the 88th Congress. By eliminating the six Republican Senators who voted against the bill (Bourke Hickenlooper, Barry Goldwater, Edwin Mechem, John Tower, Milward Simpson, Norris Cotton), we see that there were "yes" votes from 11 conservative Republicans. (American Conservative Union ratings are on-line starting from 1971; for Senators who were still voting in 1971, the 1971 ACU rating is in parentheses): Gordon Allott (82), Peter Dominick (87), Hiram Fong (67), Len Jordan (85), Jack Miller (91), Glen Beall (74), Roman Hruska (100), Carl Curtis (100), Milton Young (89, most senior Republican), Karl Mundt, and Wallace Bennett (94).

Mr. Wise's intemperate and inaccurate words serve as a reminder about the dangers of recklessly imagining the worst of one's political opponents. This is a particularly serious problem on both sides of American politics today, as it was during the John Adams administration, and in 1850s. 4 Comments


 [David Kopel, September 9, 2009 at 2:44pm] Trackbacks

Justice Stevens Loves the NRA:

At least today he did. This morning the Court heard reargument in Citizens United v. FEC. At issue is section 203 of the McCain-Feingold campaign speech restriction law, which prohibits corporations and unions from buying TV ads (and communicating in certain other media) which mention a federal candidate during the 60 days before a general election, and the 30 days before a primary. During oral argument last spring, the government had asserted that it would be constitutionally permissible for Congress to outlaw corporate/union speech in any medium (e.g., a book) during the pre-election speech restriction period.

The Court asked for re-argument and supplement briefing on whether it should over-rule the relevant part of McConnell v. FEC (2003)(which had upheld McCain-Feingold) and Austin v. Michigan Chamber of Commerce (1990)(corporate speech can be suppressed in order to relatively amplify other voices).

Scotusblog provides a summary and analysis . As Scotusblog explains, the Court seemed unanimous that the relevant portion of McCain-Feingold was constitutionally defective, and the question was whether the Court could address the problem in a narrow way, while preserving some of the precedents in question.

The NRA brief had argued that the Court should over-rule Austin/McConnell to the extent that they ban advocacy by non-profit corporations funded by individuals, or the Court should over-rule both cases as applied to all corporations. Justice Stevens liked the NRA's first alternative. However, it appeared that five Justices wanted to go further.

The briefs are here. Among them are briefs from two other groups which made me proud to be a member: Cato Institute (focus on right of association, and anonymity); Cato supplemental brief (stare decisis principles support over-ruling Austin and part of McConnell, and returning to the 1976 Buckley precedent); ACLU Supplemental (the Court should find section 203 of McCain-Feingold facially unconstitutional; this would over-rule part of McConnell, and would not require the Court to over-rule Austin).30 Comments


[David Kopel, September 8, 2009 at 4:22pm] Trackbacks

Cass Sunstein and the Second Amendment:

Second Amendment Minimalism: Heller as Griswold appeared in a symposium issue of the Harvard Law Review last fall. Sunstein examines the parallels between Heller and Griswold: "In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier...No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments."

Sunstein also notes an important distinction between Griswold and Heller:

There is an important historical difference to be pondered as well. Heller is the product of a mature current of constitutional thought, spurred by private groups but also by committed academics, that had clearly become prominent in nationwide politics and culture and that, by 2008, had established itself as thoroughly mainstream. In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation's cultural viewscreen. In this sense, Heller has far more in common with Brown v. Board of Education than with Griswold—in the particular sense that Brown, like Heller, was the culmination of a long process of advocacy, in a self-conscious effort to entrench a certain understanding of the Constitution in the interest of social reform. In short, Heller and Griswold have distinctive sociologies. While the two are both responsive to public convictions, the cultural backdrop for the two decisions was radically different.
As a description of judicial behavior, I think Sunstein's article is accurate. He would prefer that the Second Amendment be interpreted to uphold gun laws which I might consider to be infringements. However, Sunstein makes it clear that he considers Heller rightly decided; he is no originalist, but instead believes that the Court owed some deference to the moral commitments of tens of millions of Americans. Thus, Sunstein qualifies as among the most "pro-Second Amendment" of Obama administration nominees.

This is, admittedly, a very small group. Other than Interior Secretary Ken Salazar and Transportation Secretary Ray LaHood, I cannot think of any Obama nominee with a record of doing anything to support an individual Second Amendment right that includes the right to own a handgun.

I echo Ilya's point (see the chained post) that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy.

Update: A commenter has posted a video of a Sunstein lecture at U. Chicago in 2007 which presents a much more hostile attitude towards the individual right than is expressed in the Harvard article.

Still more: The American Spectator quotes an unnamed White House source:

"The goal from this White House is to have as much nonspecific language passed by Congress in policy areas like health care and the environment and then use Sunstein's office to put in place the regulatory language called for by Congress that gets us to where we want to be. It may very well be the most important job in this administration, given the lack of success we may have on Capitol Hill."
Related Posts (on one page):
  1. Cass Sunstein Confirmed:
  2. Potential Pitfalls of Political Alliances:
  3. Cass Sunstein and the Second Amendment:
  4. Mark A.R. Kleiman on Czars and "Fellow-Travelling" with "Wingnuts":
  5. A Czar Bites the Dust:
  6. Czars:
  7. Obama Administration Now has More Czars than the Romanov Dynasty:
40 Comments
[David Kopel, September 8, 2009 at 4:01pm] Trackbacks

Northwestern U.L.Sch. 2009 Firearms Law & The Second Amendment Symposium:

To be held this Saturday, 9 a.m. to 3 p.m. Cosponsored by the Northwestern University Law School chapter of the Federalist Society and the NRA Foundation.

Panel 1 is 9-10:30, on "Second Amendment Law and the Practitioner." Speakers are Christopher Conte, Richard Gardiner, Ken Hanson, and William Howard.

Panel 2 is 10:45-12:15, "The Second Amendment and Constitutional Interpretation." Speakers are Nelson Lund, Allen Rostron, and me. I will be speaking about the Second Amendment in the Living Constitution.

The final panel is "The Scope of the Second Amendment," with Nicholas Johnson, Michael O'Shea, and Clayton Cramer, 1:30-3.

Some recent interesting scholarship by the panelists includes:

Rostron: Incrementalism, Comprehensive Rationality, and the Future of Gun Control, Maryland Law Review, Vol. 67, No. 3, 2008--an explanation of how federal gun laws have been created incrementally, with the resulting product not being particularly coherent or rational. Cease Fire: A 'Win-Win' Strategy on Gun Policy for the Obama Administration, Harvard Law & Policy Review, Vol. 3, No. 2, 2009. Obama should say that he will support new legislation which advances gun control AND gun rights. Roston provides a menu of gun control choices which he argues will have little if any effect on law-abiding gun owners, plus a list of gun rights proposals which have been offered in Congress recently. A bill which contains items from both Column A and Column B would best reflect American public attitudes, he argues.

O'Shea: The Right to Defensive Arms After District of Columbia v. Heller, 111 West Virginia Law Review 349 (2009). Outstanding explanation of the civic vs. personal firearms right strands in Miller and Heller, and the implications of Heller's decision to give priority to personal use.

Lund: Heller and Nonlethal Weapons, Hastings Law Journal, Forthcoming. Heller's "common use" test for permitted arms could allow a government to stifle innovative firearms. (The O'Shea article also addresses this issue.) The Court should abandon the "common use" dicta, and instead apply the principle of Kyllo v. United States that the Constitution keeps up with technological development. This is particularly important in light of new non-lethal defensive arms which may become available.

Cramer: Gun Control: Political Fears Trump Crime Control, Maine Law Review, 61:1[2009] 57-81. Great Britain's Firearms Act of 1920 was mainly enacted in response to fears of political unrest, involving suffragettes, trade unionists, Irish, and (especially post-WWI) Communalists and the lower classes in general.

Johnson: Imagining Gun Control in America: Understanding the Remainder Problem, Wake Forest Law Review, Vol. 43, 2008. Even without the impediment of Heller, many supply-side gun controls could be nearly impossible to implement effectively. Proposals regarding registration, special restrictions on gun shows, gun rationing (e.g., "one gun a month"), ballistic fingerprinting, and smart guns are examined in light of the remainder problem.15 Comments


[David Kopel, September 4, 2009 at 12:08pm] Trackbacks

Left/Right agreement: Repubs unlikely to retake House in 2010:

The National Journal poll of political bloggers returns from August vacation. This week's first question was "On a scale of 1 (no chance) to 10 (virtual certainty), how likely are the Republicans to take over the House in the 2010 elections?" The Left bloggers gave it an average of 2.5, and the Right said 4.4.

I gave it a 3, and wrote: "Fortunately for the Blue Dogs, the backlash against Obamacare has come early enough in the legislative cycle that they can spend late 2009 and 2010 making sure to vote their districts and letting their districts know that they are not Obama's men in Congress. Besides that, most of the Democrats in tough seats have been voting pro-gun; in 1994, not one incumbent Democratic U.S. Rep. who was endorsed by the NRA was defeated." (For more on 1994, see this Independence Institute monograph, "Does the National Rifle Association Influence Federal Elections?" which studied the 1994 and 1996 U.S. House races.

Question two asked about Republican Senate gains in 2010. The Left expected them to lose 0.5 seats, while the Right expected a pick-up of 4.4. I voted for +4, based on general off-year trends (even though the Republicans have a tough map in 2010), but like several bloggers on the Left and the Right, thought that it's very hard to tell at this time. 0 Comments


[David Kopel, September 3, 2009 at 2:59pm] Trackbacks

The Lottery, in Canadian Health Care:

It's much nicer than The Lottery in the Shirley Jackson short story. Instead of stoning a person to death once a year, a small town in Canada lets four people per month get a primary care physician. Because of budget cuts, lots of families Ontario do not have a primary care physician, so one small town spent its own money to entice a doctor to move there, provided he takes on four additional primary care patients per month. The town holds a monthly lottery to choose the lucky winner. Video here, from Adam Shapiro of Fox Business News. 157 Comments


[David Kopel, September 2, 2009 at 4:38pm] Trackbacks

Chester Alan Arthur: The Barack Obama of the 19th Century:

Thanks to some comments in my previous post on presidential aspirants and citizenship, I found some interesting facts about Chester Alan Arthur, who served as President in 1881-85, succeeding to the office after the assassination of James Garfield.

Arthur's father was an Irishman who moved to Canada. There, he eloped with an American woman from Vermont. Canada and Ireland were, at the time, under the government of the United Kingdom. The couple had several children, including Chester. The father did not become a naturalized American citizen until long after Chester's birth.

During the 1880 presidential campaign, Democrats hired Wall Street lawyer Arthur P. Hinman to investigate Arthur's background. Hinman released his findings to the Brooklyn Eagle newspaper during the campaign, and later wrote a book, How a British subject became president of the United States(1884).

Hinman contended that Arthur had been born in Canada, and was thus constitutionally ineligible to be Vice-President or President.

Arthur specifically denied the claim, and said that he had been born in Vermont. There was apparently no birth certificate, since such certificates were not used in many areas at the time that Arthur was born.

Later biographers have concluded that Arthur lied about his own age, and perhaps about various aspects of his father's life. The American people obviously made a political judgment, in electing Garfield-Arthur, that they either did not believe the charge of Canadian birth, or did not care about it.

Personally, I probably would have voted for the Democratic nominee, Winfield Scott Hancock, a man of impeccable integrity and great regard for constitutional rights. He lost the popular vote to Garfield by few than 10,000 votes. In 1881, Hancock became President of the National Rifle Association. (Following in the footsteps of Ulysses Grant, who served as NRA President after serving two terms as United States President.)

In any case, the existence of the Arthur controversy is an example of political opponents raising questions about whether a president was really a natural born citizen, and raising such questions for reasons other than racism.

Related Posts (on one page):
  1. Chester Alan Arthur: The Barack Obama of the 19th Century:
  2. Presidential aspirants not born in the United States:
182 Comments

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

Rifqa Bary case update:

Transcript of yesterday's conference call led by Frank Gaffney, with Noni Darwish and the Florida Security Council. Background here. 5 Comments


[David Kopel, September 2, 2009 at 1:08am] Trackbacks

Presidential aspirants not born in the United States:

The Constitution provides: "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

During the last presidential election, some people suggested that John McCain was not eligible for the presidency, because he was born in the Canal Zone. Radio Free Europe (Russian language station) interviewed me about the controversy last year. NY Times story here. The issue got serious enough so that Congress passed a resolution saying

I remember that during the 1968 presidential election, there was controversy about the eligibility of Michigan Governor George Romney, who was the GOP frontrunner for a while. Romney (father of the current GOP frontrunner) had been born in Mexico to U.S. citizens who were living in a LDS colony there.

A 1988 Note in the Yale Law Journal about the NBC clause states: "This constitutional uncertainty persists despite the fact that the issue has arisen frequently over the past twenty years in discussions over the potential candidacies of foreign-born politicians such as Barry Goldwater, Lowell Weicker, George Romney, Christian D. Herter, and Franklin D. Roosevelt, Jr. Goldwater was born in the territory of Arizona before it became a state; Weicker, in Paris of an American father and British mother; Romney, of American parents in Mexico; Herter, of Americans in France; Roosevelt, in Canada." Note, Jill A. Pryor, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," 97 Yale Law Journal 881 (1988).

Can commenters provide other examples of previous presidents or presidential aspirants regarding whom the "natural born Citizen" clause was raised? My guess is that the current crowd of Obama birthers may be part of a broader tradition in American history than is currently recognized. If you are really diligent, see footnote 2 of the Yale note for some citations to older law review articles (not available on Westlaw) which may have some more examples.

If we look back further into our Anglo-American history, in the Glorious Revolution of 1688, when William & Mary drove out the wicked James Stuart, we find that when William of Orange set sail for England, "William made no claim on his own behalf, but called only for a free Parliament and a study of whether James II's new son really was a son or had been smuggled into the birthing room in a warming pan." Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Keep and Bear Arms." Review of Joyce Malcolm's book To Keep and Bear Arms: The Origins of an Anglo-American Right. 96 Michigan Law Review 1333 (1995).

The historical cases are interesting to consider because they provide some perspective on the current claims that the birthers are active only because Obama is biracial. Historically, one can find some analogues; I saw enough anti-LDS prejudice during Mitt Romney's 2007-08 presidential campaign to indicate that religious bigotry might have played a role in George Romney birtherism. Unquestionably the concern of the James II birthers was not worry that the James Stuart (who was Catholic) had a low sperm count, but fear of his efforts to replace Protestant England's mixed form of government with absolutism modeled on Catholic, hyper-centralized France. However, for many of the other instances of birtherism (McCain, Weicker, Goldwater, Roosevelt, etc.), it is hard to see any angle involving racial or religious prejudice.

Related Posts (on one page):
  1. Chester Alan Arthur: The Barack Obama of the 19th Century:
  2. Presidential aspirants not born in the United States:
230 Comments
[David Kopel, September 2, 2009 at 12:02am] Trackbacks

Castro, Morales, Nyerere named official UN heroes:

Story here. More information in this story in Spanish. Morales is officially "the maximum exponent and paradigm of love for Mother Earth." Castro is "World Hero of Solidarity." The late Nyerere is "World Hero of Social Justice."

General Assembly President Miguel D'Escoto Brockmann said, "What we want to do is present these three people to the world and say that they embody virtues and values worth emulation by all of us." They indeed worthy of emulation by anyone who aspires to becoming a famous tyrant while crushing freedom and the rule of law--as does the Sandinista government of Nicaragua, whom D'Escoto represents at the UN. 37 Comments [David Kopel, August 28, 2009 at 5:08pm] Trackbacks

Economic projections of the consequences of Obamacare:

A brand-new Issue Paper from the Independence Institute features an analysis by Arthur Laffer on the national and Colorado consequences of Obama care, based on a one trillion dollar increase in health care subsidies over the next decade. These consequences include:

Overall, total federal expenditures will be 5.6 percent higher than otherwise by 2019, adding $285.6 billion to the federal deficit in 2019.

An increase in national health care expenditures by an additional 8.9 percent by 2019.

An increase in medical price inflation by 5.2 percent above what it would have been otherwise by 2019.

Reduce U.S. economic growth in 2019 compared to the baseline scenario by 4.9 percent for the nation as a whole and 4.3 percent in Colorado.

Higher medical inflation and overall expenditures will ultimately lead to government expenditures that exceed the $1.0 trillion in expenditures on health subsidies. The net present value of all additional federal government expenditures through 2019 that will occur as a result of a federal health care reform is $1.2 trillion, or a $3,900 bill for every man, woman, and child in the U.S.

Despite the additional $1 trillion in expected health care subsidies by the government, 30 million people would remain uninsured. The cost to reduce the number of uninsured by 16 million people is $62,500 in subsidy expenditures per person insured.

  250 Comments


[David Kopel, August 26, 2009 at 9:30pm] Trackbacks

The UN's Arms Trade Treaty: A Dangerous Multilateral Mistake in the Making:

That's the title of an excellent new Issue Backgrounder from the Heritage Foundation, by Ted R. Bromund and Steven Groves. The authors detail numerous problems with this Treaty, which is currently being drafted at the United Nations.

My own critique of the Treaty--based on case studies of Zimbabwe and DR Congo--is that the Arms Trade Treaty is almost certain not to make embargos against human rights violators more effective. 41 Comments


[David Kopel, August 21, 2009 at 8:46pm] Trackbacks

More on gun registration, and guns at POTUS speeches:

Over at the CBS News blog site, Declan McCullagh has a new article on the constitutionality of gun registration. He has input from Volokh, Kopel (we disagree), and many others.

Also in relation to a topic that I blogged about yesterday, my iVoices.org podcast on guns at presidential speeches is now on-line.

On the one hand, I think that the some folks in the MSM are being self-indulgently paranoid in mis-interpreting these legal displays as threats. And some media have been even worse, in trying to impose a racial narrative on the whole thing.

On the other hand, as I elaborate in the podcast, I think that this form of protest is probably harmful to the Second Amendment cause. It's sort of a Second Amendment version of the gay rights people chanting "We're here, we're queer. Get used to it." This kind of self-expressive demonstration can sometimes be helpful for a cause, and sometimes harmful, depending on the context. In the context of a presidential visit, I think it is harmful.

Related Posts (on one page):
  1. More on gun registration, and guns at POTUS speeches:
  2. 7th Circuit Says Gun Registration is OK. Guns at Obama protests:
54 Comments

[David Kopel, August 20, 2009 at 2:53pm] Trackbacks

7th Circuit Says Gun Registration is OK. Guns at Obama protests:

Last week, the 7th Circuit Court of Appeals decided a case involving the Cicero, Illinois, gun registration ordinance. Full coverage of the decision is available in an article for CBS News, by Declan McCullagh. (And be sure to check out Declan's new Taking Liberties weblog.) The decision is written by Supreme Court short-list Judge Diane Wood.

The Wood opinion first cites circuit precedent, accurately, for the fact that the Second Amendment is not incorporated in the Seventh Circuit. The decision goes on, however, to declare that the Second Amendment would not be violated even if it did apply. That portion of the decision has very little reasoning; it simply says that Cicero (unlike D.C., in Heller) does not ban guns. Ergo, the Cicero registration law is constitutional.

The Wood opinion quotes some language from Heller, which provided a non-exhaustive list of presumptively constitutional gun control laws. Yet this list, to the extent that it is relevant, cuts against the Cicero ordinance. Included in the Heller list are: "laws imposing conditions and qualifications on the commercial sale of arms." This would suggest that the gun registration system created by the federal Gun Control Act of 1968 would probably be upheld. The gun is registered at the time of sale, and the registration paperwork (the federal 4473 forms) must be retained by the dealer. The forms are available to law enforcement, without need for a warrant, in the course of bona fide criminal investigations. The 1968 GCA was a compromise; it created registration (which was the primary objective of gun control advocates at the time) but had the registration records maintained in decentralized locations (at the dealers) rather than consolidated by the federal government (since Second Amendment advocates worried that centralized registration might one day be abused in order to implement gun confiscation, as it had been under Nazis).

Cicero's ordinance, however, goes far beyond registration of "commercial sale," and requires that anyone who simply possesses a gun must re-register it every two years. Accordingly, the Cicero ordinance is not within the scope of Heller's presumptively constitutional laws. The Wood court, if it wanted to provide dicta about the constitutionality of registration, should have provided some legal analysis, rather than merely asserting that the Cicero ordinance was constitutional. (The CBS article explains some other features of the Cicero law; the ban on laser scopes strikes me as almost certainly unconstitutional, and the ban on slingshots seems dubious.)

A second issue in the news has been the fact that when President Obama spoke at the Phoenix Convention Center recently, several protestors on the sidewalk outside the center carried firearms openly, as is lawful in Arizona. I've been the Phoenix Convention Center, which is immense. There is no possibility that a person with a gun outside the Center could pose the slightest threat to a person speaking in one of the rooms inside the Center. The White House, commendably, said that the President had no objection to the protesters. However, I think that the protesters probably hurt, rather than helped, the Second Amendment cause. This article in the Christian Science Monitor quotes me to that effect. I did an iVoices.org podcast on the topic, to which I will provide a link when it is uploaded.

Finally, shame on MSNBC for dishonestly injecting racism into the controversy, and claiming that the gun carrying may have had "racial overtones." Actually, as Newsbusters has pointed out, the black rifle was being carried by a black man.

Related Posts (on one page):
  1. More on gun registration, and guns at POTUS speeches:
  2. 7th Circuit Says Gun Registration is OK. Guns at Obama protests:
47 Comments
[David Kopel, August 17, 2009 at 6:26pm] Trackbacks

Is Obamacare Constitutional?

Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon Caldara.)

Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:

1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.

2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.

3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.

4. It violates the Tenth Amendment by commandeering state governments.

A couple caveats: It's a blog post, not a law review article, so it just sketches out the above points briefly. It's obviously written in the spirit of starting a public dialogue conversation. In the spirit of constructive dialogue, we promise not to say that we "don't want the folks who created the mess to do a lot of talking." (By "created the mess," I mean the people who created the legislation with little apparent consideration for constitutionality, and who appear to have operated from the presumption that Congress can exercise powers which are not enumerated.)

Also, when Rob writes something on a blog, he is not setting out an official Independence Institute position, nor does he purport to do so. (The same goes for what I write on VC.) And while Rob and I agree on many constitutional issues, we do not necessarily agree on all of them; for example, he does not believe that the 14th Amendment, properly interpreted, protects unenumerated rights, whereas I do.

I hope to have the chance to interview Rob on an iVoices.org podcast in the near future, and will certainly study the Comments to look for serious, challenging questions to ask.98 Comments


[David Kopel, August 17, 2009 at 12:40pm] Trackbacks

Second Circuit rules in favor of firearms dealers on procedural due process

Spinelli v. City of New York was decided on August 7, by Judges Calabresi and Walker. Judge Sotomayor had been on the panel, but did not participate in the decision, due to her elevation to the Supreme Court.

Angela Spinelli had been doing business a licensed firearms dealer in the Bronx for decades. Pursuant to New York City law, the police conducted an unannounced inspection of her premises in October 2001. They found security violations, seized all her firearms, and suspended her license for selling firearms. Spinelli fixed the security violations, and 58 days after the suspension, her license and firearms were restored.

In the lawsuit arising from the NYCPD conduct, the Second Circuit ruled:
 

1. There was no Fourth Amendment violation to the unannounced search, because it was conducted pursuant to the NYC Code, and because firearms dealers, as a pervasively regulated business, have little expectation of freedom from warrantless inspection.
2. Spinelli was not entitled to due process prior to the license suspension and the seizure of her inventory, because of the necessity for rapid action to protect public safety.

3. Spinelli was entitled to post-seizure due process, including notice (of what the specific security violations were) and a hearing. New York City refused to provide this, and accordingly, summary judgment should be entered against the City on this issue, and the district court should make a determination regarding damages. The fact that Spinelli was able to hire a lawyer to negotiate with the City does not cure the City's due process violation.

4. Spinelli had a property interest in her firearms business license. In contrast to a NY State handgun carry license (for which there is nearly unlimited discretion for revocation), a firearms dealer license is a property right, because the grounds for revocation are limited.

5. Because Spinelli has a valid federal claim (post-seizure due process), the federal district court also has jurisdiction over Spinelli's state law claim of tortious interference with business relations. The case in district court should proceed forward on this issue.

Items 3-5 reversed the decision of district court Judge Richard Casey. I have not read the briefs in this case, so it is possible that there are problems in the decision which are not obvious merely from reading the appellate opinion. However, within the four corners of the opinion, the decision seems generally correct based on existing precedent. Not that I necessarily agree with all the precedent, but the Second Circuit's application of that precedent appears reasonable.

FURTHER THOUGHTS: Commenters are arguing a lot about #1, which is fine, although as a matter of law this is well settled. Upon further reflection, I think that if there's a part of the opinion where the Second Circuit could reasonably have ruled the other way, it's #2. The Circuit is of course right that preventing guns from getting stolen (the security violations) is a very important government interest, and all the more so immediately post-9/11. So too, however, is the acquisition of firearms by law-abiding citizens, and all the more so post-9/11. The firearms seizures prevented the acquisition of guns by some customers who had already paid for them (and who were going through the NYC registration process). Accordingly, the better course of action for the NYCPD would have been to tell Spinelli immediately what the violations were (broken fence in the backyard, counter not under constant supervision, safes open), and then give Spinelli the opportunity continue business operations if she immediately cured the security defects. For example, she could have hired 24-hour security guards for the backyard until the fence was repaired; she could have hired another guard to stay at the counter every moment that the store was open, while the store interior was being reconfigured to keep the counter in view at all times. And so on. Even if the case did not involve constitutionally-protected items for which lawful sale to the public is itself a matter of improving public safety (e.g., if Spinelli owned a liquor store rather than a gun store), then offering the opportunity for an immediate cure would seem to be the better course for the regulators. Whether the failure to offer the option of an immediate cure rather than a suspension constitutes a violation of constitutional due process is perhaps a more difficult question than the Second Circuit realized, although I would not say that the Second Circuit's decision was plainly wrong as a matter of law.34 Comments


[David Kopel, August 13, 2009 at 8:58pm] Trackbacks

Tenth Circuit split on gun ban for misdemeanants

The Tenth Circuit divided 2-1 today on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. The issues arises because federal prosecutors petitioned for a Writ of Mandamus, to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. The issue was whether a domestic violence misdemeanant can be criminally convicted for possessing a gun if the jury decides that he poses no threat of violence, after the defendant raises the issue as an affirmative defense.

In case no. 09-4145, Judges Hartz and Kelly voted to issue the Writ of Mandamus which the prosecutors had sought. Judge Murphy dissented, and would have set the issue for briefing.

The case involves two separate issues: first, whether the federal d.v. gun ban is constitutional in all circumstances, and second, whether the answer to the first question is so clear as to make mandamus appropriate. On the second question, at least, I think Judge Murphy has the better argument, although the majority opinion has some valid points.

As for Judges Hartz and Kelly, who authored the majority opinion to issue the writ, Judge Hartz's record on the Second Amendment suggests hostility to the right. Judge Kelly's record, in contrast, demonstrates that he takes the right seriously, and attempts to apply it conscientiously to the cases at bar. (As detailed in my Denver University Law Review article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, which was recently cited in a concurring opinion by Judge Tymkovich in United States v. McCane, upholding the felon-in-possession statute.)20 Comments


[David Kopel, August 7, 2009 at 7:54pm] Trackbacks

New podcasts on Second Amendment issues

Late last month, I taped a couple new podcasts for the Independence Institute's iVoices.org: One is on the Thune Amendment, to create national concealed carry reciprocity; the bill fell a little bit short of the number of votes needed to beat a filibuster. The other is on my Senate Judiciary Committee testimony against the nomination of Sonia Sotomayor.

On another topic...as has previously been noted on the VC, a concurring opinion by Judge Tymkovich in a recent Tenth Circuit case, United States v. McCane, suggests that the constitutionality of the absolute ban on firearms possession by all convicted felons should be re-examined by the Supreme Court. The opinion cites my article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, 86 Denv. U. L. Rev. 901(2009), which was part of the DU L Rev's annual Tenth Circuit Symposium.52 Comments


[David Kopel, August 7, 2009 at 5:31pm] Trackbacks

Bloggers agree: "Government-run" tag is worst threat to health care bill

This week's National Journal poll of political bloggers asked the bloggers "How serious is each of the following challenges in selling health care reform?" Bloggers of the Left and the Right agreed that "Government-run health care" was the biggest challenge, and that "Too costly" ranked second.

The challenge that I ranked as greatest, "Nothing for the insured," came in last place on the Left, and next-to-last on the Right. My rationale:

"The real problem is that rather than getting 'nothing,' the already-insured will end up worse off, and more and more of them are realizing that. Tens of millions of them will get pushed out of their current private insurance, end up stuck in the public 'option,' and have to live with British/Canadian-style rationing by queue -- in which survival rates for cancer are much lower, people wait for many months for operations, and every doctor-patient transaction is controlled by the government."
Question 2 was "What's the bigger political problem facing President Obama right now?" Seventy-five percent of the Right, and 33% of the Left, thought, "Concerns about his handling of the economy." The majority of the Left voted for "The prospect Congress won't enact health care reform this year."

I voted for the economy, but saw it as linked to health care: "The latter is helping to cause the former. The irresponsible, reckless, pork-filled, wasteful, government-centric deficit spending spree in the so-called 'stimulus' has raised justifiable concerns that a health care system run by the same crowd of people will raise rather than lower costs, and will not be effectively managed." 18 Comments


[David Kopel, July 24, 2009 at 12:43pm]

Left/Right agreement: Neither Obama's health care, nor congressional Republicans, are very good:

This week's National Journal poll of political bloggers asked "Grade President Obama's handling of health care reform." The Left gave him a C, while the Right awarded an F.

Taking the view that you usually can't get a good grade without doing the reading, I voted "F", and wrote: "Perhaps he should learn what's in the House bill before unleashing his political machine to demand that people support it. The bill would break many of his campaign promises, including the promise to protect people who want to keep their current insurance."

The second question asked: "Grade congressional Republicans' effectiveness so far this year as the "loyal opposition." The Left gave a grade of "D", while the Right supplied a "C-." This is close enough to make "D+" into a trans-ideological consensus.

I was outside the consensus, however, and gave the Republicans a B: "They have done a reasonably good job at staying united. Their best move was making Obama and the Dems own the 'stimulus,' so the fact that the economy is not responding as 'stimulus' backers promised ends up hurting the bill's Democratic advocates. More generally, though, the Republicans are benefiting from over-reaching by Pelosi et al, particularly on the climate tax bill."57 Comments


[David Kopel, July 23, 2009 at 7:02pm] Trackbacks

Privileges AND Immunities podcast

University of Montana Law Professor Rob Natelson (who is also a Senior Fellow at the Independence Institute) and I discuss the original meanings of the "privileges and immunities" clause in this 46 minute podcast. Natelson is the author of a recent article in the Georgia Law Review on the topic.

Please note that we are talking about the provision in Article IV of the Constitution's main text: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." We are not talking about the Privileges OR Immunities clause of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."11 Comments


[David Kopel, July 23, 2009 at 4:36pm]

The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators.

That's the paper I presented at the recent annual conference of the Research Committee on Sociology of Law, in Onati, Spain. It is now available on SSRN. Along with co-authors Paul Gallant & Joanne D. Eisen, I will be revising for law review submission soon. In the meantime, comments are welcome.

For those of you who prefer to read in French or Castellano (as they say in Spain), there is an 8-page summary in French, and the abstract is reprinted in Spanish; both appear at the end of the document. In English, the Abstract says:

"Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This paper first examines the ATT, and observes that the ATT, if implemented as promised, would require dozens of additional arms embargoes, including embargoes on much of Africa. The paper then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The paper argues that the ATT would do nothing to remediate the conditions which have allowed so many arms to be acquired by human rights violators in Zimbabwe and the DRC. The ATT would have no more effective force than the embargoes that are already imposed by the UN Security Council; therefore states, including China, which violate current Security Council embargoes could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators."15 Comments


[David Kopel, July 20, 2009 at 7:13pm] Trackbacks

Two Gentlemen of Verona, at the Colorado Shakespeare Festival

The Colorado Shakespeare Festival's production of Two Gentlemen of Verona, which opened Sunday night, might be summarized by a line from Dickens: "It was the best of times. It was the worst of times." That is, the audience loved it, and I couldn't stand it.

Two Gentlemen was the first of Shakespeare's comedies, incorporating many elements that he would use in later works. Each of the two gentlemen friends is pursuing a romance, but things get disordered and complicated. One of the girlfriends disguises herself as a man, and learns some unpleasant truths about her beloved. There is a clownish servant whose main job is double-entendres. Everybody ends up in a forest, and then everything turns out alright, with the miscreants forgiven, virtue rewarded, and romances properly resolved.

A straightforward performance of a Shakespeare play is unthinkable these days, so every producer has to think up a novel interpretation. Here, TGV is turned into a play-within-a-play. We watch a "rehearsal" of TGV, with the characters wearing partial costumes on top of their street clothes, using rough props, and moving about a partially-constructed set.

On a physical level, this works very well. The incomplete costumes and set are intriguing.

The problem is the script of the outer play. First all, it consumes a huge amount of time, necessitating enormous cuts in TGV. The cuts seriously impede the development of the main characters, so that their various emotional changes over the course of TGV sometimes seem to have little or no basis.

Second, the replacement of so much Shakespearean dialogue with the dialogue from the outer play is a very bad trade. The outer play--whose plot is a conflict between the director and two actors--could easily be a mediocre and instantly-forgotten television situation comedy.

As a mixture of sit-com and Shakespeare, the outer play does not come close to the elegance, wit, or good jokes of the Gilligan's Island productions of Hamlet or Cleopatra. Indeed, it's not even as good as the Hey Arnold episode where the class puts on Romeo & Juliet.

When TGV itself is actually allowed to go forward, the performances are solid and engaging. Unfortunately, the frequent intrusions of the outer play into the "rehearsal" break the dramatic momentum of a very good play, and jolt the audience back into a lousy play.

"Over the top" is a mild description of the production’s frequent use of banal jokes and other simplistic devices. Act II (just before intermission) and the play itself both end with "The Hokey Pokey." And in this performance, The Hokey Pokey really is what it's all about. The play that you will see is not really Two Gentlemen of Verona. The experience is akin to watching Masterpiece Theater on a television set which automatically switches to a bad episode Hee Haw at random intervals.

There’s obviously an audience for such a production, since the preview night audience adored the show, laughing heartily and applauding with gusto.

In any case, this year’s TGV is not the norm at the Colorado Shakespeare Festival, which more typically stages actual productions of the play whose name is on the ticket, and which almost always produces at least one outstanding play every summer.

This summer, the other plays in repertory at the CSF’s two stages at the University of Colorado at Boulder are Hamlet, Much Ado about Nothing (set in Barcelona in 1934), and To Kill a Mockingbird.17 Comments


[David Kopel, July 19, 2009 at 11:54pm] Trackbacks

More blogger polls from National Journal

Earlier this month, I was traveling to a conference of the International Institute for the Sociology of Law, in Spain. So I have neglected to post some recent National Journal polls of political bloggers. Here they are.

The July 10 poll asked "If the cap-and-trade legislation passed by the House becomes law, how much will it reduce global warming -- if at all?" Hardly anyone thought "a lot," but 58% of the Left thought "some," while 79% of the Right thought "none." I voted for "a little," with the comment, "Under 1 degree centigrade. Probably much less than that."

Question 2 was "Do you favor any of these additional stimulus measures?" Much of the Left favored "Grants to state and local governments" and "Safety-net payments." The Right preferred tax cuts for businesses and individuals.

I chose "No further action for now", and wrote: "Bush's reckless and irresponsible deficit spending has been followed by much, much more of the same. It's time to stop the hair-of-the-dog remedies, which just make everything worse in the long run. If Obama demanded a balanced budget, he would be a true agent of change, and his legacy for future generations would be hope rather than debt."

The July 3 poll brought trans-ideological agreement on "What's the biggest problem for Democrats right now?" The answer was "A sluggish economic recovery."

I was part of the minority who picked "rising deficits," and said "Most fiscally reckless and irresponsible presidency ever. Much worse than GWB and LBJ combined."

As for, "What's the biggest problem for Republicans right now?" a large majority on the Right said "Lack of a leader." A plurality of the Left said "Obstructionist image in Congress."

But I picked "scandal," with the explanation: "If the GOP, during its years of congressional control, had not gotten so deeply involved in the culture of corruption, then the party today might be a more attractive alternative to voters currently disgusted with the corruption of Dodd, Frank, Rangel, etc., which played such a huge role in causing the mortgage meltdown."24 Comments


[David Kopel, July 19, 2009 at 6:54pm] Trackbacks

Bloggers split on Palin effect, and health care taxes

This week's National Journal poll of political bloggers asked "On balance, would Sarah Palin be more of an asset or a liability in campaigning for Republicans in competitive 2010 races?" On the Right, 62% thought she would be an asset, while only 13% of the Left did. I thought that she would, and wrote: "Presumably she will focus her efforts in races where she would be a net plus. I don't think we will see her campaigning for R's in Manhattan or Hollywood."

The other question was "Name and rank the two most politically risky ways to amend the tax code to pay for health care reform." The choices were: Limit the tax break on itemized deductions, Limit the tax benefit for "Cadillac" employer-sponsored health plans, Limit the tax benefit for wealthy individuals with employer-sponsored health plans, Increase income taxes on the wealthy, and Tax sugary drinks.

On the Left, the leading choices were limiting itemized deductions, and taxing full-featured health care plans. But the only choice that went over 50% (with first and second choices combined) was "none," which was a write-in vote.

On the Right, taxes on itemized deductions and sugar both got over 50%. I thought that the sugar tax and the marginal income tax rate increase would be most politically dangerous. I explained: "The sugar tax would be well-known by even most Americans who are not politically engaged as an example of intrusive nannyism. It would be a net plus in, at most, a few very health-conscious places. It would also cause trouble in the farm belt. Raising taxes on the most productive people will not only make many of them irate, it will significantly harm the economy, and reduce job creation and opportunity for everyone except government employees."62 Comments
 


[David Kopel, July 19, 2009 at 6:25pm] Trackbacks

Nannyism panel videos

On June 19, the day before the Independence Institute's annual Alcohol, Tobacco & Firearms day, we held a panel on Nannyism, at the Warwick Hotel in Denver. Speakers included Andrew Breitbart (Drudge Report, Big Hollywood), Radley Balko (Reason), Linda Gorman (Independence Institute), David Harsanyi (Denver Post), Andrew Boucher (NoCoPolitics.com), Jordan Lipp (Colorado Civil Justice League), Terry Gallagher (Smoker Friendly), and me. The videos are available on the Independence Institute's MySpace page. The video of my 18 minute presentation is here.1 Comments


[David Kopel, July 19, 2009 at 5:29pm] Trackbacks

Happy Birthday Samuel Colt

Today is the anniversary of the 1814 birth of Samuel Colt. Not only was Samuel Colt one of the greatest firearms designers of all time, he was also a brilliant industrialist, a philanthropist, and an outstanding pro-labor employer. In 2002, I wrote an article in support of making the Coltsville manufacturing area into a National Park. In 2008, the area became a National Historic Landmark; the campaign for National Park status continues.23 Comments


[David Kopel, July 19, 2009 at 4:35pm]

We win the Emmy!!!

The Heartland Regional Emmy Awards ceremony was held on Saturday night, July 18. Winner in the "Interview/Discussion Program" category was the KBDI-TV public affairs roundtable program, Colorado Inside-Out. Our winning episode was "Time Machine: 1858," in which the cast does the show in a Denver saloon, early in the gold rush. That episode was first broadcast last July. For this year's time machine show, we traveled back to 1959, and discussed Cuba, Lady Chatterley's Lover, and other issues of the day. In 1858, I play the pioneer Chauncy Drizzelwhit. In 1959, I am his descendant, Charleton Drizzelwhit-Koplowitz, book review editor of the Rocky Mountain News.

Emmy3 Comments


[David Kopel, July 3, 2009 at 1:34pm] Trackbacks

Second-guessing the Second Amendment

That's the title of this week's Independence Day cover story in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second Amendment rights, including my article, "The liberal argument for gun ownership."44 Comments


[David Kopel, July 1, 2009 at 1:35am] Trackbacks

Ricci Reactions from Heartland

The Heartland Institute rounds up reactions to Ricci v. DeStefano, and the case's relevance to Judge Sotomayor. Comments from Professors Ronald Rotunda and Rick Esenberg, Ilya Shapiro (Cato), Maureen Martin (Senior Fellow for Legal Affairs, Heartland), and me, among others.31 Comments

 

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