Under the 1958 federal Switchblade Act, switchblade knives are not importable into the United States, and may not be shipped across state lines. On May 21, U.S. Customs & Border Protection (CBP) proposed the revocation of four previous Ruling Letters; the effect would be a drastic expansion of the definition of non-importable knives. The organization KnifeRights warns that revocations would outlaw approximately 80 percent of the current market in folding knives.
The federal law does not apply to the mere possession or carrying of knives, but as KnifeRights explains, many state and local bans on possession or carrying are parasitic on the federal definition. Accordingly, if the proposed Customs change goes into effect, many millions of people who own or carry pocketknives would instantly be defined as criminals.
The National Rifle Association and other Second Amendment groups have issued alerts about the proposed change, but the KnifeRights website is the key source for detailed information. Founded in 2006, KnifeRights is still a fledgling organization; they do good work, and I am pleased to be a member.
[David Kopel, June 12, 2009 at 11:28am] Trackbacks
This week's National Journal poll of top political bloggers produced unusually fractured results. Question one was "Politically, how important is it to President Obama that health care reform be bipartisan?" Sixty percent of the Right and 42% of the Left thought it was "very" or "somewhat" important.
Question 2 was "Who is the dominant voice of the Republican Party these days?" From both the Right and the Left, Rush Limbaugh came in first, and Dick Cheney came in second. However, on the Right, the winner was "none", which also came in third among the Left voters. My opinion was: "None. Which is good. The Republicans need to have a broad debate about their political principles, rather than picking a leader before they decide where they should go."
When I am not blogging, one of my activities is appearing on the weekly public affairs program Colorado Inside-Out. It's similar to the national weekly roundtable shows, except that we don't overtalk each other, and we try to advance the discussion, rather than repeating talking points. Once or twice a year, we do a "time capsule" show in which we take the show back to some point in Colorado history. Last summer, we taped an 1858 show. It has just been nominated for a Heartland Regional Emmy, in the category "Interview/Discussion Program." (The Heartland region covers Denver, Oklahoma City, Tulsa, Wichita/Hutchinson, Omaha, Colorado Springs/Pueblo, Lincoln/Hastings-Kearney, Topeka, Grand Junction/Montrose, Cheyenne/Scottsbluff and North Platte.)
This is our second Emmy nomination, following our 2008 nomination for our 1927 show. Both shows, as well as some recent regular episodes, are available on-line here.
BTW, in the 1858 show, all the characters, except mine, are genuine historical people from early Colorado. For 1858, I play Chauncey Drizelwhit, whose descendant Chumley appears in 1927. William Byers, the founder of the Rocky Mountain News, is played by Kevin Flynn, the transportation reporter for the Rocky. The host is Raj Chohan, a reporter for CBS 4 TV. The blonde woman is Patty Calhoun, publisher of the weekly newspaper Westword. The other woman is Dani Newsum, who has been a radio host, a civil rights and gay rights activist, and who currently teaches History at the University of Colorado. The two men around the whisky barrel at the start of the show are Tom Noel (on the left, Colorado's foremost public historian) and Dennis Gallagher (Denver City Auditor, formerly a State Senator). William Sitting Bull Stewart plays Chief Little Raven.
As for firearm on the table, it's a reproduction of the Colt Patterson Percussion Revolver. We were not unmindful of Chekhov's gun rule.
This week's National Journal Poll of political bloggers asked "Do you agree with President Obama's decision to take General Motors to bankruptcy court?" One hundred percent of the Left, and 54% of the Right said "yes."
I was in the majority, albeit with a qualification: "Even better would have been bankruptcy according to established legal rules, rather than the Peron-style expropriation of money from the senior bondholders for the benefit of the UAW."
Question 2 was "Regarding the Supreme Court nomination of Sonia Sotomayor, what will be the political impact on your party?" On the Left, 94% thought it would help their party, and on the Right, 67% thought it would hurt their party.
My answer was idiosyncratic. Although it's listed under "minor harm," I had voted for "minor help." I explained: "As a Democrat, I think it will help the party by mollifying some of the Hispanics who will be upset by Obama's inability to pass an amnesty program for illegal aliens. The nomination may also benefit Republicans, if Republican senators raise serious objections about some of Sotomayor's unpopular and legally weak decisions, such as Ricci, Maloney and Village of Port Chester."
[David Kopel, June 4, 2009 at 6:07pm] Trackbacks
Just uploaded: Jon Caldara and I discuss the 7th Circuit decision in NRA v. Chicago. 12 minutes. In another podcast, Amy Oliver and I discuss the Montana Firearms Freedom Act, which attempts to exempt guns manufactured and possessed within Montana from federal laws based on the interstate commerce power. 16 minutes.
[David Kopel, June 4, 2009 at 12:42pm] Trackbacks
In a forthcoming article for America's 1st Freedom, I detail Harold Koh's expressions of strong support for severe anti-gun laws, his stated intention to use his government position to promote such laws, and various techniques of transnationalism by which he could, as Legal Adviser to the U.S. Department of State, advance his agenda.
[David Kopel, June 4, 2009 at 11:33am] Trackbacks
A recent poll by WorldPublicOpinion.org finds that German public opinion of the United States has improved notably in recent months. Asked if the U.S. is playing "a mainly positive or mainly negative role in the world," the positive side won 44% to 34%. Last year, "mainly positive" had only 20% support. An amazingly high 89% of Germans trusted Obama to do the right thing regarding world affairs.
The German public does disapprove, by 37% to 54%, of Obama's escalation of the war in Afghanistan, and by 52% to 42%, favors immediately ending Germany's participation in that war.
As I detailed in a previous post, Judge Sotomayor co-authored two opinions which denied that the possession of a firearm is a fundamental right. The first case can defended as based on what was, at the time, still-valid dicta. The second case is indefensible.
The first case was United States v. Sanchez-Villar (2004). For the proposition that that there is no fundamental right to possess a gun, Judge Sotomayor and the other two judges quoted United States v. Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.
Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.
On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:
Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport "in commerce or affecting commerce ... any firearm." Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class.The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.
It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.
In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court court judges who had "overread Miller" and criticized Justice Stevens for wanting to defer to "their erroneous reliance" on interpretations similar to the one proffered by the Second Circuit in Toner. The Heller decision stated that "Miller did not hold that and cannot possibly be read to have held" that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.
In 2009, Judge Sotomayor was part of a three-judge panel which decided a challenge to New York state's prohibition of nunchaku, Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the right to arms issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.
Instead, the panel simply stated a general rule about the Fourteenth Amendment: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. (Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.)
The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test: 1. Does the legislative act interfere with a fundamental right or single out a suspect classification? 2. If not, is there a rational basis for the law?
The cigar aficionado Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.
Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that the right to arms is not a fundamental right.
The opinion in Maloney v. Cuomo is not a good example of intellectual rigor. When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.
[David Kopel, May 29, 2009 at 6:54pm] Trackbacks
Professor Christian Kopff of CU-Boulder recently wrote the introduction to a new translation of the Iliad; I interviewed him about why this new version is important. 33 minutes.
Into today's issue of The New Ledger, I analyze some of the reader comments from last week's reader comments to a collection of pro/con essays in the on-line New York Times, regarding guns in National Parks.
This week's
National Journal
poll of political
bloggers asked:
"What is Vice
President Biden's
impact on the Obama
administration?" Of
Left-leaning
bloggers, 81% said
that he is helping
"a lot" or "a
little." On the
Right, nobody
thought he was
helping a lot, and
23% thought he was
helping a little.
Fifty-four percent
said "Hurts a
little."
I voted with the
Right majority, and
wrote: "Was supposed
to be a wise expert
in foreign policy.
Now rather comical.
In the last six
months, has greatly
underperformed Sarah
Palin."
The results page
also include the
blogger poll on
Sonia Sotomayor,
which was published
earlier this week,
and discussed
previously on the
VC.
The Convention Against Torture defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:
The Committee was deeply concerned about Chile’s [sic] anti-abortion law, which prohibited abortions even in cases of rape, incest or when the life of the mother was at stake. That meant that women victims of violence were subjected to continuing violations, placing them under serious traumatic stress with the risk of incurring long-term psychological problems. A further concern were reports that human rights defenders were systematically harassed and received death threats, as well as the fact that women defenders of reproductive rights were subjected to criminal investigations.Amnesty International has been pushing the issue, and castigated Nicaragua's abortion law in an April report to the UN Committee. After the Committee issued its statement, AI called on Nicaragua to comply wiht the CAT by liberalizing its abortion laws, including by repealing all criminal sanctions against abortion providers.
The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties. A report from C-Fam indicates that other UN Committees have been using their own particular treaties to pressure Nicaragua on abortion.
It is indisputable that childbirth is often very painful, and that some pregnancies can have severely painful or life-threatening complications; it is also true that abortion can cause "severe pain and suffering" for the fetus. However, the CAT itself defines "torture" only to include "severe pain and suffering" which is inflicted for certain motives--none of which appear to be present in Nicaragua's case. Rather, the Nicaraguan law appears to have been enacted for the purpose of protecting fetal life--not surprising in which a country where almost all the people are either Roman Catholic or evangelical Protestant.
The UN Committee raised concerns about harassment of "human rights defenders" and "women defenders of reproductive rights." The claims of harassment (if factually accurate) would very likely indicate violations of other human rights treaties which guarantee freedom of speech, of political activism, and so on. But the harassment (as long as it fell short of torture) would seem entirely unrelated to the jurisdiction of the UN Committee Against Torture, unless one concludes (as AI argues) that banning abortion is sometimes a form of torture; in that case, pro-abortion speech would be considered anti-torture speech, and therefore the harassment of speakers have some relevance to the international law against torture.
FWIW, if I were an American legislator (and presuming that Roe v. Wade had been overruled) I would not vote for a law like the Nicaraguan one, and if I were a Nicaraguan, I would never vote for a Sandinista. But the facts do suggest that the UN Committee is treating the Sandinista government very unfairly, indeed unlawfully.
A
special poll of
bloggers from
The National Journal
asked "Would it
be politically smart
for Republicans to
try to block the
confirmation of
Judge Sonia
Sotomayor?" Among
the Left bloggers,
the unanimous answer
was "No." On the
Right, 53% said "No"
and 47% said "Yes."
I voted "Yes," and
wrote: "The
Democrats who tried
to block Roberts and
Alito appear to have
suffered no adverse
consequences. [And,
I should have added,
neither did the Dems.
who filibustered
Miguel Estrada, who,
like Sotomayor, is a
Hispanic with an
impressive life
story.] Sotomayor is
on the wrong side of
fairness, empathy,
the Constitution and
the American people
in regards to
firearms ownership
(Maloney v. Cuomo;
United States v.
Sanchez-Villar);
wealthy people using
the government's
eminent domain power
to extort money from
small business (Didden
v. Village of Port
Chester); and a
racial spoils system
for government
employees (Ricci v.
DeStefano)."
Something (to which I will not link) has appeared on the Internet, which purports to describe Sonia Sotomayor's work at Princeton:
Sotomayor is a graduate from Princeton University, where her legal theses included Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture. In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.There is no reason to believe this is true. The purported source is "American News Inc." The link to this alleged news source is dead. In a quick Internet search, I found no such organization.
Further, the text of the article is self-refuting. An undergraduate at an Ivy League school, including Princeton, would write only one thesis. (Perhaps two if she were an exceptionally hard-working double major.) It would be unheard of for a student to write more than three, as the article claims she did. Nor would anyone who actually knew what a Princeton thesis was describe it as a "legal" thesis.
Moreover, Sotomayor was intelligent enough to graduate from
Updated update: Commenters explain that Princeton students write two junior papers and one senior paper; only the latter is called a "thesis." Other commenters point out that her senior thesis was about the Puerto Rican politician Luis Munoz Marin. The blog which created this item has a small tag on the article which says "satire." Although all of the commenters on that blog seem to have taken the article seriously, as has every other cite to it on the web. People who want to read satire on the web would be better off with Iowahawk, which can be recognized as satire because it is sometimes funny.
Maloney v. Cuomo
is a 2009 per
curiam opinion of
the Second Circuit,
upholding New York
State's complete ban
on the possession of
nunchaku. New York
is the only state in
the nation with such
an extreme ban.
In the opinion by
Judges Pooler,
Sotomayor, and
Katzmann, the per
curiam judges first
cite
Presser v.
Illinois
(1886) for the
proposition that the
Second Amendment
directly applies
only to the federal
government, and not
to the states. They
also cite a more
recent Second
Circuit case which
relies on Presser,
for the same
proposition.
Bach v. Pataki,
408 F.3d 75 (2d Cir.
2005).
In this regard,
Judges Sotomayor et
al. are plainly
correct. However,
they seriously
misconstrue the
Second Amendment
itself, when they
write: "The Supreme
Court recently held
that this confers an
individual right on
citizens to keep and
bear arms." To the
contrary, as the
Supreme Court
explained at length
in District of
Columbia v. Heller,
the Second Amendment
does not "confer"
any right; the right
to arms pre-exists
the Constitution.
The Second Amendment
protects but does
not create that
pre-existing right.
As the Heller Court
detailed, the fact
that the right to
arms is
pre-constitutional
is elaborated in the
1875 Supreme Court
case,
United States v.
Cruikshank.
[UPDATE: Oren's
post, above,
accurately points
out that Heller
itself uses the
word "confer", so
even though the word
is inconsistent with
Heller's own
explication of the
right to arms as a
pre-existing right,
the Maloney
opinion can't be
faulted for using
the same word.]
Presser did
not discuss whether
the Due Process
clause of the 14th
Amendment makes the
Second Amendment
enforceable against
the states. Indeed,
Presser could
not have discussed
the question, since
the doctrine of
incorporation via
the Due Process
clause was not
invented until
later. The Sotomayor
per curiam opinion
ignores Due Process
incorporation, even
though any serious
analysis of whether
the Fourteenth
Amendment makes the
Second Amendment
enforceable against
the states would
have to address the
issue. However,
Maloney's
pro se brief in
the case never
raised selective Due
Process
incorporation, but
only addressed the
Fourteenth Amendment
in the context of
unenumerated
fundamental rights (Meyer
v. Nebraska,
Griswold v.
Connecticut,
etc.).
The Sotomayor per
curiam opinion
addressed the
Fourteenth Amendment
by quoting a
previous Second
Circuit decision:
"Legislative acts
that do not
interfere with
fundamental rights
or single out
suspect
classifications
carry with them a
strong presumption
of constitutionality
and must be upheld
if 'rationally
related to a
legitimate state
interest.'" The
opinion then went on
to find a rational
basis, since
nunchaku had
sometimes been used
by criminals.
In other words, the
Second Amendment is
not "a
fundamental right."
The Sotomayor panel
could have offered a
legal explanation
for why (in the
panel's opinion)
nunchaku are not
"arms" within the
meaning of the
Second Amendment,
and therefore a mere
rational basis test
for nunchaku bans is
appropriate. But the
Sotomayor court did
not do so. To the
contrary, the
Sotomayor per curiam
opinion treats
any Second
Amendment claim as
not involving "a
fundamental right."
The Maloney
opinion is, on this
issue, entirely
consistent with
Judge Sotomayor's
opinion in a 2004
case: "the right to
possess a gun is
clearly not a
fundamental right."
United States v.
Sanchez-Villar,
99 Fed.Appx. 256,
2004 WL 962938 (2d.
Cir. 2004)(Summary
Order of Judges
Sack, Sotomayor &
Kaplan), judgment
vacated, Sanchez-Villar
v. United States,
544 U.S. 1029
(2005)(for further
consideration in
light of the 2005
Booker decision
on sentencing).
Judge Sotomayor's
record suggests
hostility, rather
than empathy, for
the tens of millions
of Americans who
exercise their right
to keep and bear
arms.
- More on Sotomayor and the Second Amendment:
- Sonia Sotomayor versus the Second Amendment:
The on-line New York Times has a daily feature called "Room for Debate." The paper picks a topic for the day, and posts short essays from five experts. Today's topic is Guns in Parks: Safe, Scary or a Sideshow?. My essay on the topic supports the new federal law, and praises President Obama for signing it, because the law simply says that federal lands should follow the same policies as their host states. The four other essayists include Jens Ludwig and John Lott.