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.
Categories: Uncategorized 58 Comments
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: Law schools 3 Comments
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
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.
Categories: Uncategorized 18 Comments
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.
Categories: Uncategorized 2 Comments
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.
Categories: Uncategorized 31 Comments
[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
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.
[David Kopel, September 18, 2009 at 12:20pm] Trackbacks
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."
[David Kopel, September 16, 2009 at 2:48pm] Trackbacks
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.
Decision in Rhodes v. MacDonald, dismissal for failure to state a claim. It seems to me to be a well-reasoned opinion.
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.
What is the best GPS for use in outdoor activities such as hiking, hunting, or fishing?
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!"
[David Kopel, September 11, 2009 at 1:03am] Trackbacks
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.
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).
Second Amendment Minimalism: Heller as Griswold appeared in a symposium issue of the Havard 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."
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 Practicioner." Speakers are Christopher Conte, Richard Gardiner, Ken Hanson, and Willam 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) Commununists 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.
[David Kopel, September 4, 2009 at 12:08pm] Trackbacks
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.
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.
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.
- Chester Alan Arthur: The Barack Obama of the 19th Century:
- Presidential aspirants not born in the United States:
[David Kopel, September 2, 2009 at 2:17pm] Trackbacks
Transcript of yesterday's conference call led by Frank Gaffney, with Noni Darwish and the Florida Security Council. Background here.
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.
- Chester Alan Arthur: The Barack Obama of the 19th Century:
- Presidential aspirants not born in the United States:
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.
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.
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.
Over at 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.
- More on gun registration, and guns at POTUS speeches:
- 7th Circuit Says Gun Registration is OK. Guns at Obama protests:
[David Kopel, August 20, 2009 at 2:53pm] Trackbacks
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.
- More on gun registration, and guns at POTUS speeches:
- 7th Circuit Says Gun Registration is OK. Guns at Obama protests:
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.
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 judgement 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 ocunter 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.
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.)
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.
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."
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."
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."
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."
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.
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."
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."
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.
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.
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 Chatterly'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.
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[David Kopel, July 3, 2009 at 1:34pm] Trackbacks
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."
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 Senior Fellow for Legal Affairs, Heartland), and me, among others.
