ss Kopel's Corner weblog, Jan.-Mar. 2008 archive

Kopel weblog 2008 Archive: January-March

[David Kopel, March 31, 2008 at 11:33pm] Trackbacks

Oral Argument in DC v. Heller. The view from the Counsel Table:

On March 18, I joined the lawyers for Dick Heller at the counsel table for oral argument in District of Columbia v. Heller. The counsel table has four seats, and there were three lawyers representing Mr. Heller, so Alan Gura, the lead lawyer in the case, invited me to sit with them at the counsel table.

The practical function of the lawyers who are not presenting the oral argument is to write notes for the arguing lawyer, in case a tangential issue comes up. During the presentations by Walter Dellinger (for D.C.) and Paul Clement (for the Solicitor General) Justice Stevens asked questions which pointed out that of the Founding Era state constitutions, only two (Pennsylvania and Vermont) specifically mentioned self-defense as one of the purposes for the right to arms. So I gave Gura a note pointing out that courts in Massachusetts and North Carolina had interpreted their state constitution "for the common defence" language as an encompassing a right to arms for legitimate purposes, including defense against criminals. During Gura's presentation, Justice Stevens raised the point again, and Gura began to detail the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.

After oral argument in any case, it's always possible to think about how a particular answer could have been given better; but I think that Alan Gura did an excellent job. He was solid, well-informed, and persuasive.

Some observations from a first-timer in the Supreme Court:

The counsel table is quite near the bench. It's an interesting experience to see the Justices up close and personal, after having spent so many months trying to discern their modes of thought.

It is indeed awe-inspiring to hear the Marshal of the Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Before the argument, Walter Dellinger, a true Southern gentleman, came over to shake our hands. He graciously told Gura that Gura would do "great," and said that his own very first oral argument had been his best.

Also awe-inspiring are the Court's chambers, with a beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical characters personifying law-related virtues such as wisdom.

Based on the oral argument, it is possible to identify a few of the amicus briefs that were particularly influential. As Respondent, Gura would have been foolhardy to argue that the Court's leading precedent, United States v. Millerneeded to be altered in any respect. That argument was instead in Nelson Lund's excellent brief for the Second Amendment Foundation, and was apparently adopted by Justice Kennedy.

Justice Kennedy's view that the militia clause of the Second Amendment emphasizes the importance of the militia, but does not limit the rights clause was supported not only by Gura's brief, but also by a careful textual analysis in the Lund brief, and by a strong historical presentation in the Academics for the Second Amendment brief, written by David Hardy and Joseph Olson.

Gura was asked at one point if there was any contemporaneous evidence indicating that self-defense was a purpose of the Second Amendment. He began by pointing to the 1787 Dissent from the Pennsylvania ratifying convention, which had urged that the proposed U.S. Constitution be amended to state: "That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."

Justice Souter retorted that the Pennsylvania Dissent was only concerned about the militia. Given the text of what the Pennsylvanians said, I find this view implausible; the better argument on D.C.'s side (made by, among others, Dennis Henigan of the Brady Center) seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have copied Pennsylvania's language, but he chose not to.

Nevertheless, Justice Souter seemed to have been persuaded by arguments in a historians' brief by Carl Bogus, which cited the law review scholarship about Pennsylvania by Nathan Kozuskanich. Kozuskanich was also cited in D.C.'s briefs, and in several of D.C.'s amicus briefs.

Michael Bane's Down Range TV has a collection of various lawyers, academics, and other Second Amendment advocates, discussing the oral argument. He also has a link to the oral argument audio. C-Span's Real Video coverage of the press conference after the brief (about 21 minutes, equally divided between the two sides) is here. A 15 minute podcast in which I'm interviewed about the oral argument is here.

For over a quarter-century, pro-Second Amendment lawyers such as Stephen Halbrook, Bob Dowlut, Don Kates, and David Hardy had dedicated their careers to making March 18, 2008, possible. Moreover, without the work of millions of pro-Second Amendment activists over the years, there would have been no chance of victory, however persuasive the evidence of original meaning might be. If the gun prohibition lobby had succeeded in its plans to use the 1976 D.C. ban to pass handgun bans in many cities and several states, it is doubtful that the Supreme Court would have the institutional will to strike down so many laws. And it also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional.

Yet while the work of millions of citizens made March 18 possible, it was Alan Gura who had to finish the job alone. Our young Skywalker performed magnificently, and I hope that by the Fourth of July, the law-abiding citizens of our nation's capital will once again enjoy their rights to own handguns, and to use firearms in defense of their homes and families. 67 Comments  

[David Kopel, March 22, 2008 at 10:04am] Trackbacks

Taiwan Presidential Election: Results and Process.

1. Election Results. The Nationalist Party (Kuomintang, KMT) presidential candidate Ma Ying-Jeou won a landslide victory today, defeating the Democratic Progressive Party candidate Frank Hsieh by 17% (58.5% to 41.5%). Ma won about 7.6 million votes, compared to 5.4 million for Hsieh. The results exceed even the election-eve expectations of the KMT, which was hoping that its internal polls showing a victory margin of about 11-13% would hold up.

Compared to the 2004 election (in which the DPP's margin of victory was only 0.22%), the KMT improved its performance in every Taiwan county by 7-10%, and won 20 of the 25 counties. (The only county where the KMT did not improve dramatically was Kinmen County, which consists of some small islands very near to China; a large percentage of the population of Kinmen County is military and their families, and the military has historically favored the KMT. The KMT got about 95% in Kinmen in both 2008 and 2008.) The only counties with the DPP won were a cluster in southwest Taiwan, the party's heartland.

The KMT and DPP positions on domestic policy were not greatly different, but the DPP nevertheless suffered from voter unrest about lower economic growth rates in recent years, in comparison to the rapid economic growth of not long ago. The parties have significant differences on international relations, particularly on how to deal with China, but both Ma and Hsieh are moderates within their parties. For further analysis of the policy implications of the election results, tune in next to a webcast of a TV program in which I interviewed a pair of Taiwanese political scientists. (Details later.)

The DPP also performed very poorly in the January elections for the legislature (Legislative Yuan), in part because a group of 11 DPP incumbents were defeated in primaries by hard-liners who could not carry swing districts. Nevertheless, because Hsieh is a moderate, there is a significant possibility that DPP's remaining moderates may be driven from leadership roles.

President-elect Ma will take office on May 20.

A pair of initiatives were also on the ballot, regarding Taiwan's membership in the UN. A DPP referendum asked if Taiwan should apply to join the UN under the name of "Taiwan." A KMT counter-initiative asked if Taiwan should apply to "rejoin" the UN under the name of "Republic of China" or "any other convenient name." Both initiatives received an overwhelming majority of votes cast, but neither passed, because the law states that no initiative will be valid unless 50% of eligible voters (not actual voters) vote on the initiative.

2. Election Process. The voting and vote-counting were a model of integrity, transparency, and efficiency. I observed voting at three north-central Taipei precincts: at St. John Bosco Catholic Church, and at a pair of precincts voting at National Taipei University.

Throughout Taiwan, voting was by paper ballot, with marked ballots placed into sealed ballot boxes. Photography during the voting process is forbidden, but is allowed while the ballot are being counted.

When the ballot box is opened, and vote-counting begins, each ballot is held up one-by-one, and the vote is announced. The vote-counting is open to the public, and is observed by party representatives, as well as other interested citizens.

Each vote is recorded on a tally sheet which is also visible. Each small box on the tally sheet holds a total of five votes, which are recorded one at time with hashmarks. The completed five-strokes of the hashmark form a Mandarin character which means "correct" or "upright."

After the last ballot is tallied, the empty ballot box is displayed for all to see.

The results are transmitted to a district election office, and then the district results are sent to the Central Election Commission, where results are displayed as fast as they are recorded.

The Central Election Commission's work (which was conducted in an auditorium at the National Police Academy) is open for everyone to watch, with the data processors located at the front of the room.

Between the time when we left our precinct after the votes were counted, and when we arrived at the Central Election Commission, about half an hour had elapsed. By then, the CEC was already displaying over half of the votes cast nationwide.

In a typical American general election, which may have dozens of races and issue votes, it would be very difficult to achieve such speedy results with hand-counting. Even so, the transparency of the Taiwan process inspires confidence and helps assure legitimacy.

As in any election, there are plenty of people who are disappointed with the result, and no one should minimize the difficulty of the challenge that President Ma will face in ensuring that when he leaves office in 2012 or 2016, Taiwan's freedom and sovereignty have not been eroded by its aggressive neighbor. But for now, all the people of Taiwan should be proud of their beautiful island of freedom, and their successful exercise of the inherent right of the sovereign people to chose their government. 0 Comments

[David Kopel, March 21, 2008 at 12:24pm] Trackbacks

Taiwan Election Coverage

In about seven hours, the polls will open for Taiwan's presidential election. Incumbent President Chen Shui-Bian is term-limited, so the race is between Frank Hsieh, of the Democratic Progressive Party (the same party as Chen), and Ma Ying-Jeou, of the Kuomintang (Nationalist Party). The public release of polling information is forbidden in the days before the election, but many observers believe that Hsieh is rapidly closing a large gap in the polls.

An important factor working in Hsieh's favor is the rioting in Tibet, a reminder of China's brutal suppression of a formerly independent nation; although the Chinese government has renamed Tibet as the "Tibet Autonomous Region," Chinese treatment of the Tibetans ever since the Chinese conquest half a century ago serves as a reminder that the Chinese government's promises of autonomy are sometimes worthless.

Mr. Ma, the former mayor of Taiwan's capital city, Taipei, has proposed forming a common market with China, and his party, the KMT, is generally seen as more conciliatory to China than is the DPP. (However, DPP candidate Hsieh is seen as much less inclined than President Chen to push the envelope on China issues.)

As a result, Ma has made a point of taking a tough line on the Tibet issue. He contrasted Taiwan and Tibet by stating that unlike Tibet, Taiwan is "sovereign"--an indisputably accurate fact, although one with many appeasement-minded KMT members have been reluctant to say out loud. Further, he said that if Chinese government violence in Tibet continues, Taiwan might boycott the Beijing Olympics.

Over 200,000 Taiwan citizens living overseas have come home to vote in the election. The majority of these traveling voters are Taiwanese entrepreneurs and their families who live in China. One elderly man traveled 20 hours from Brazil to be able to vote.

The Taiwanese are very enthusiastic participants in their democracy, and, happily, the electorate seems less polarized than in the bitterly-contested 2004 election.

By Taiwanese law, all public rallies must end by 10 p.m. on the night before the election. A little bit ago, I attended the KMT's final pre-election rally in Taipei. Neither presidential candidate Ma Ying-Jeou nor his running mate Vincent Siew were at the rally, since both spent the day in campaigning in southern Taiwan. Below are some pictures from the rally. I didn't arrive in Taipei in time to attend the DPP's big rally there two nights ago; I wish I had, so that I could also post DPP photos.

VC readers will be pleased to know that both Hsieh and Ma have law degrees, and that Ma earned a LLM from Harvard.

These photos are taken from near the front of the rally; they don't convey the size of the crowd, which was huge, or the sounds of the loud and enthusiastic crowd.

The woman in the middle of the above picture (to the left of the man in the lavender shirt) had flown in from Los Angeles to vote.

The KMT is the leading party of the pan-blue coalition; while the DPP leads the pan-green coalition. Hence the DPP's campaign symbol of a bluebird. The flags, of course, are those of Republic of China, which is Taiwan's formal name.

Siew is on the left, Ma on the right. 46 Comments

 [David Kopel, March 16, 2008 at 3:06pm] Trackbacks

Polls on handgun bans

The Sunday Washington Posthas an interesting collection of articles previewing Tuesday's oral argument in District of Columbia v. Heller, regarding whether DC's handgun ban and ban on home self-defense with any gun violate the Second Amendment. Among the articles is a poll on American attitudes towards gun ownership and the Second Amendment.

In the WaPo poll, 72% of respondents said that they considered the Second Amendment to be an individual right, not just for militia only. The is essentially identical to the most recent Gallup Poll (conducted Feb. 8-10, 2008) in which 73% of respondents said that the Second Amendment was an individual right, not limited only to militia.

The WaPo poll also asked "Would you support or oppose a law in your state that bans private handgun ownership and requires that rifles and shotguns kept in private homes be unloaded or have a trigger lock?" 59% said yes.

This is a surprising result, since it is strongly contrary other polling results. In the Gallup Poll, for example, you have to go back to 1965 to get plurality support for a handgun ban, and back to 1959 to find support comparable to the level report by WaPo.

Here's the Gallup question, and the results. "Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?"

2007. Oct 4-7. 30% should. 68% should not. 2% undecided.
2006. 32/66/2.
2005. 35/64/1.
2004. 36/63/1.
2003. 32/67/1.
2002. 32/65/3.
2000. 36/62/2.
1999. April. 38/59/3.
1999. Feb. 34/64/2.
1993. Dec. 39/60/1.
1993. March. 42/54/4.
1991. 43/53/4.
1990. 41/55/4.
1988. 37/59/4.
1987. 42/50/8.
1981. June. 41/54/5.
1981. April. 39/58/3.
1980. Dec. 38/51/11.
1980. Jan. 31/65/4.
1975. 41/55/4.
1965. 49/44/7.
1959. 60/36/4.

CBS/New York Times polls have asked "Would you favor or oppose a ban on the sale of all handguns, except those that are issued to law enforcement officers?" The CBS/NYT results are:

April 2007. 33% in favor. 64% opposed.
2000. 34/63.
1999. 43/53.
1994. 46/50.
1989. 40/55.
1981. 43/51.

I don't know why the WaPo results are so different from the others. Perhaps there was some effect from WaPo asking a compound question.

BTW, the issue in Heller is not the trigger lock requirement per se. It's that the there is no exception allowing the gun to be unlocked in a self-defense emergency; in the 1977 case of McIntosh v. Washington, the D.C. Court of Appeals upheld the home self-defense ban against challenges that it violated equal protection and the common law right of self-defense. The McIntosh court agreed with D.C's lawyers and recognized the statute as an absolute ban on home self-defense with any firearm; this was held to be rational because of the number of fatal gun accidents was (according to the McIntosh court) larger than the number justiable self-defense homicides with guns.

UPDATE: A reader has supplied some graphs of the trends in the NY Times and Gallup polls. If they're too small for you to read comfortably, click on the graph, and you'll get a bigger version.


[David Kopel, March 15, 2008 at 2:21am] Trackbacks

American Constitution Society panel on DC v. Heller

Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel's office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available here. 12 Comments

[David Kopel, March 9, 2008 at 5:18pm] Trackbacks

DC v. Heller: Nathan Kozuskanich's selective reading of American History

In the Supreme Court's Second Amendment case District of Columbia v. Heller, DC and its amici frequently cited a then-forthcoming Rutgers L. Rev. article by Nipissing University assistant history professor Nathan Kozuskanich, a protégé of Saul Cornell. DC's reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.

A pair of new postings by Clayton Cramer analyze the J. Constl. L. article, and the Rutgers article. To call the articles "law office history" might be unfair to law offices.

Regarding the J. Const. L.article, Cramer explains how Kozuskanich's theory (that the right to arms in early Pennsylvania was only for collective defense of the state) depends on ignoring other evidence, and on strained, implausible readings of the evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of Dr. James Reynolds for "assault with intent to commit murder." Kozuskanich claims that the prosecution proves that Pennsylvania's constitutional right to arms did not apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with a crime for his mere carrying of the pistol; he was charged with a crime because he pointed the pistol and threatened to shoot someone. The book American State Trialsobserves that Reynolds "contented himself with carrying a pistol. And in this he was justified by every law, human and divine." Certainly no-one at the trial contended otherwise; so Kozuskanich's claim that the prosecution for attempted homicide proves that there was no individual right to own and carry guns is implausible.

The prosecution's theory of the case was that Dr. Reynolds, who was in a public place, could have safely retreated from threatening mob, and that Blackstone's standards for self-defense require such retreat. The jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of the split between the more restrictive British standards of self-defense, and the new, more liberal American standards. That conflict on self-defense standards continues to the present day. But arguments about the boundaries of self-defense (such as whether there is a duty to retreat if possible) certainly do not disprove the existence of a constitutional right of individuals to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in an article in the Georgetown Journal of Law and Public Policyoffer numerous examples of Founding Era usage of "bear arms" to mean carrying guns in a non-military setting. Tellingly, Kozuskanich simply ignores the Olson/Cramer evidence, for that evidence demolishes Kozuskanich's theory.

Cramer's critique of the Rutgers article observes that Kozuskanich actually cites Michael Bellesiles, who was forced to resign from Emory after the proof (brought forward by Clayton Cramer, James Lindgren, and others) that Bellesiles had falsified his data, including his data on the very point for which Kozuskanich cites him (the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776 guaranteed "That the people have a right to bear arms for the defence of themselves and the state." The opening language, "That the people have a right", was identical to Articles X, XII, and XVI, which guaranteed the individual rights to freedom from unreasonable search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania Convention's debates on Article VIII of the Constitution--affirming that everyone is bound to serve in the militia, or pay "an equivalent thereto" (that is, a fee whereby conscientious objectors could be excused from serving personally). Kozuskanich claims that the Article VIII debates prove that there was no individual right to arms for self-defense. As Cramer notes, this is silly. The Article VIII debates were not, of course, about an individual right, which was the subject of a separate article; the Article VIII debates involved the scope of a duty.

Kozuskanich's approach to Pennsylvania is similar to the approach that his mentor, Prof. Cornell, uses for St. George Tucker (the leading constitutional scholar of the Early Republic): quote Tucker's words about congressional militia powers arising from Article I of the federal Constitution, and claim that those words prove that the Second Amendment does not involve arms for personal defense. (For more on this latter point, see Stephen Halbrook's article in the Tenn. J. L. & Pol.24 Comments

[David Kopel, March 4, 2008 at 10:07pm] Trackbacks

Larry Tribe's flip-flop in DC v. Heller

Last May, after the D.C. Circuit Court of Appeals ruled in District of Columbia v. Heller that the D.C. handgun ban violates the Second Amendment, Harvard Law School Professor Larry Tribe was contacted, and asked if he would like to write an amicus brief in support of Heller. Tribe wrote back to Heller's attorneys that he did not want to do an amicus brief, but he would be interested in exploring his playing a "more central role" in the case. Tribe urged that he could be effective with the center and left-of-center Justices.

The only "more central role" than that of amicus-writer is that of co-counsel for Respondent. And, obviously, the only position of a counsel for Respondent would be in favor of affirmance of the favorable judgment below. Of course a counsel might offer a different theory for why the decision should be affirmed.

Today in the Wall Street Journal, Professor Tribe penned an op-ed urging that the decision of the Court of Appeals be reversed; he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."

Professor Tribe has the right to change his mind, but the air of forceful certainty with which he today argues for reversal seems inconsistent with his unrequited offer from ten months ago to play a "more central role" in securing affirmance. 41 Comments

[David Kopel, February 29, 2008 at 1:26pm] Trackbacks

McCain's birth, Russian language version

In this Russian-language radio broadcast for Radio Free Europe/Radio Liberty, I add my own thoughts to the controversy. Synopsis: the issue hasn't been clearly settled by the courts, but most legal scholarship supports McCain's eligibility. His eligibility is strongly supported by the fact that he was born on American soil, since he was born in the Canal Zone. The clause was intended to prevent dual loyalty, which is not an issue in McCain's case, since he was an American citizen at the moment of his birth, and he was never a citizen of Panama or any other nation. Thus, this is an easier case than someone who was born on foreign soil, and who received foreign citizenship as a result of that birth. (E.g., a child born to American private-sector workers who were living in Ireland at the time of the birth; although I argue that even in this case, most legal scholarship would favor that child being considered "a natural-born citizen.")

Related Posts (on one page):
  1. "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty":
  2. McCain's birth, Russian language version:
  3. The meaning of "natural born."
  4. "Natural-Born Citizen":
[David Kopel, February 27, 2008 at 2:14pm] Trackbacks

The legal availability of handguns makes for a better-prepared police force and a safer citizenry

Ed Nowicki (head of the International Law Enforcement Educators and Trainers Association) and I explain why in an op-ed in today's Baltimore Sun. The Nowicki-Kopel amicus brief is here.10 Comments

[David Kopel, February 25, 2008 at 9:29pm] Trackbacks

Palestinians as "the most oppressed people on Earth"

I've seen various Internet sites claiming that in Iowa, Senator Obama called Palestinians "the most oppressed people on Earth." Can commenters supply information about an original source (rather than a third-hand Internet claim) about whether Senator Obama really said this? Even if one accepts the theory that Israel is entirely responsible for Palestinian "oppression," and that the Palestinians (unlike, for example, the East Germans in 1946) bear no responsibility for their current situation, it seems preposterous for anyone to believe that Palestinians are more oppressed than, say, Darfuris or North Koreans. Accordingly, I hope that the quote is just an unfounded Internet rumor.

Update: Impressively fast reader comments explain that Obama never said such a thing; the "quote" is a very garbled version of something he did say, and which is a very mainstream observation.

Further update: I participate in the ListServ of the National Council of Editorial Writers. One of the main purposes of the ListServ is to provide information about astroturf letters to the editor, or about other LTE issues. I sent a memo to the ListServ explaining that the purported Obama quote is fake; thanks to VC commenters for helping to expose the truth about the false quote. 32 Comments

[David Kopel, February 23, 2008 at 6:29pm] Trackbacks

Media miscoverage of the role of man-made chemicals in disrupting human or animal reproduction

That's the topic of my media column in today's Rocky Mountain News. The column also expresses skepticism about the benefits of Gannett buying Colorado's leading college newspaper, about media coverage of Obama and Clinton, and about Maureen Dowd.9 Comments

[David Kopel, February 23, 2008 at 1:19am] Trackbacks

Geographical Gun Control Research Project

David Bernstein recently noted Illinois State Senator Barack Obama's 1999 proposal for a federal law against licensed firearms dealers operating within five miles of a school or park. Every town I've ever visited which has more than a few dozen inhabitants has either a school or a park. Hypothesizing that the ban would apply to city parks (e.g., Central Park in New York City) but not to National Parks, pick a geographical region, and describe where a licensed firearms dealer could operate. Or pick a geographic point (e.g, Houston) and identify how far a person would have to drive in order to get to the closest point where a gun store could legally be located. Extra credit for illustrative maps. 43 Comments

[David Kopel, February 22, 2008 at 1:28am] Trackbacks

Podcast on Framing Brief in DC v. Heller:

At, I interview Hamline law professor Joe Olson for 44 minutes about the Academics for the Second Amendment brief he co-authored in District of Columbia v. Heller. The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others. The podcast is available in MP3 or streaming format.8 Comments

[David Kopel, February 19, 2008 at 5:58pm] Trackbacks

The Human Right of Self-Defense

The final, published version of this article from the BYU Journal of Public Law is now available. The article, which I co-authored with Paul Gallant and Joanne Eisen, argues that personal self-defense is recognized as a universal human right, and is the foundation of international law. The article critiques a report by University of Minnesota Law Professor Barbara Frey, written for the UN Human Rights Commission/Council, which contends that self-defense is not a right, but is instead, at most, an excuse similar to duress or insanity. 31 Comments

[David Kopel, February 20, 2008 at 12:59am] Trackbacks

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:

That's the title of a Working Paper that I've co-authored with Howard Nemerov. Abstract:

There are 59 nations for which data about per capita gun ownership are available. This Working Paper examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.
Comments are welcome--particularly by commenters who read the article, rather than wasting time on troll battles on other issues.


[David Kopel, February 18, 2008 at 8:03pm] Trackbacks

Samuel Golubchuk euthanasia update:

Late last year, I wrote about the case of Samuel Golubchuk, an elderly Canadian man whom his doctors wish to euthanize, over the strong objections of his orthodox Jewish family. (Hastening someone's death by withdrawing life support is known as "non-aggressive euthanasia.") A recent policy statement from the College of Physicians and Surgeons of Manitoba, asserts the power and the duty of physicians to euthanize patients, notwithstanding the objections of the patient or his family. Last week, a Winnipeg trial court issued an injunction requiring continued care for Mr. Golubchuk, pending a full trial on the merits.

According to the decision, Golubchuk's relatives

have produced an affidavit of a neurologist who practises in New York and has reviewed the entire hospital record of Grace Hospital. He has noted an absence of any examination of the plaintiff by a neurologist, any brain-imaging such as with CT scan or MRI, or other measurement of brain activity. He stated that the record contains many references to the plaintiff being awake and making purposeful movements that have not been reported by or explained by the defendants' deponents. He stated that the plaintiff has not been assessed for aphasia, locked-in syndrome or other treatable neurological illnesses, which could account for his apparent lack of consciousness. He concluded on that point:
11. Furthermore, according to the documentation in the medical records, Mr. Golubchuk's condition has demonstrably improved (Exhibit "D"). There is no evidence whatsoever that he is brain dead, close to brain dead, or dying, from a neurological point of view. He has enough higher cognitive function to not only be considered awake but to make frequent, purposeful movements and engage in other purposeful activities.
The court rejected the hospital's claim that settled law allowed a physician to terminate life-sustaining treatment over the objections of a patient or family. Further, wrote the court, it was possible that Golubchuk had a right to treatment under the Canadian Charter of Rights and Freedoms, or the common law. In light of the balance of equities (that Golubchuk would suffer an irreparable injury, namely death, without an injunction), the court enjoined the hospital from euthanising Golubchuk pending trial on the merits.

I was surprised to find that the name of the hospital that wants to euthanise Golubchuk is the Salvation Army Grace General Hospital, which according to its website, is a "faith-based" facility.


What kinds of control on government spending growth work?


A new article in the Cato Journal, by Robert Krol, examines various strategies for limiting government spending growth. He finds several methods to have proven success: Tax and Expenditure Limits (such as those in Colorado's Taxpayer Bill of Rights), balanced budget requirements (a long-standing requirement in Colorado), and citizen initiatives (part of the Colorado Constitution since the early 20th century). In contrast, two methods have been shown not to work: Rainy Day Funds (which are often used to avoid tax and spend limitations), and term limits (which are actually associated with higher spending; legislative, but not gubernatorial, term limits are associated with lower taxation).

[David Kopel, February 18, 2008 at 6:42pm] Trackbacks

Web design bleg

I manage website A with MS Frontpage 2003. On one of the pages on site A, I would like to include the most-recent contents of an RSS feed from site B (which is a Typepad weblog). How do I accomplish this? 10 Comments

 [David Kopel, February 18, 2008 at 6:18pm] Trackbacks

Rob Natelson, the Spending Power, and Fiduciary Duty:

A recent article in the Texas Review of Law and Politics, by my Independence Institute colleague Rob Natelson (who is also a constitutional law professor at the University of Montana) applies some cultural context to the original meaning of the spending clause.

At the time of the Founding, the legal principles of "fiduciaries," "servants," or "agents" were well-known. A fiduciary/servant/agent was expected to act impartially, not for his own self-interest, on behalf of the principals. For example, if a person were the trustee of an estate for three children, the trustee would be required to give each of the children equal earnings from the trust. (Unless there were a good reason not to. i.e., the one child was independently wealthy from other income; one child had made an improvident marriage).

Natelson argues that the fiduciary principles are incorporated into the Constitution, and provide the basis for "rational basis with bite" review of congressional spending. (That is, until the 1936 Butler case is over-ruled, and Congress is again required only to spend in furtherance of enumerated powers, rather being allowed to spend for anything it chooses.)

For example, Congress spends money to establish a National Institute of Obesity Research in Mississippi. The spending will provide a much greater financial benefit to Mississippi than to any other state, but the purpose of the NIOR is clearly to benefit the entire nation, by improving everyone's health. This spending passes the rational basis with bite test.

In contrast, consider the earmark which former Senator Conrad Burns created, in order to provide funds for capital construction at the University of Montana Law School. This would appear to be special-interest spending for the benefit of a single state, not for the nation as a whole. Such spending would fail the rational basis with bite test. If, perhaps, Congress made a finding that some states were chronically underlawyered, and provided capital construction grants for expanded law school facilities in all such states, then the spending might pass the Natelson test. (The above examples are my own, not Natelson's, although he does cite the Montana earmark as an example of pork.) 2 Comments

[David Kopel, February 18, 2008 at 3:13pm] Trackbacks

David Young on the pro-DC Historians Brief in DC v. Heller

Published today on History News Network, an article by David Young which critiques an amicus brief filed by 15 history/law professors, arguing against the standard model of the Second Amendment. If you would like a copy of the article with citations, just go to Young's website, and e-mail him a request. If you are interested in studying the original documents about the Second Amendment from the Founding Era, Young's book The Origin of the Second Amendment is an outstanding, and amazingly thorough resource. 13 Comments

[David Kopel, February 18, 2008 at 2:40pm] Trackbacks

Originalist Analysis of George Washington and Establishment of Religion:

The Texas Review of Law and Politics has a review of the new book by co-authored by my Independence Institute colleague Joseph C. Smith, Under God: George Washington and the Question of Church and State. The book examines Washington's views and practices on issues of related to government support of religion. The book concludes that Washington was far less concerned about separation of church and state than were Jefferson and Madison, and that Washington's views deserve greater consideration from modern courts than they have received. 25 Comments

[David Kopel, February 14, 2008 at 5:04pm] Trackbacks

Best Pro-Hillary Video Ever

A short video statement from a friend of mine, whose family lived, and still lives, one block from the World Trade Center. She describes Senator Clinton's role in asking the tough questions about air quality near the WTC in the weeks and months after the attack. The video is a powerful, personal, and credible testimonial to the best side of the detail-oriented Senator Clinton. 59 Comments

[David Kopel, February 13, 2008 at 3:15pm] Trackbacks

Audio/video on the Amicus briefs in DC v. Heller

Heritage Foundation event last Thursday, Senators Kay Bailey Hutchinson (R-Texas) and Jon Tester (D-Montana) discuss their congressional amicus brief in D.C. v. Heller. Independence Institute podcast, in which I discuss the law enforcement amicus brief I wrote. Tonight on NRA News, at 11:20 Eastern Time, I will be interviewed about the brief. (The broadcast is available on Sirius 144, and on the Internet, and is available by podcast for the day after the program.) 4 Comments

[David Kopel, February 13, 2008 at 2:40pm] Trackbacks

The Fifth Circuit Ban on Sex Devices:

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

Related Posts (on one page):
  1. The Fifth Circuit Ban on Sex Devices:
  2. Dildoes Going to the Supreme Court?
[David Kopel, February 13, 2008 at 2:18pm] Trackbacks

Military Brief in DC v. Heller

A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC's theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC's argument is contrary to the constitutional plan for federal militia supremacy.

Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.

No brief filed by Petitioner or its amici addresses these issues.

Below the fold: Maryland Governor Herbert O'Connor's March 10, 1942 radio address, asking for volunteers from, inter alia, the "membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type" to help defend Maryland against potential German incursions, such as saboteurs. "[T]he volunteers, for the most part, will be expected to furnish their own weapons....The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity."

Archives of Maryland Online, Volume 409, Page 616
State Papers and Addresses of Governor Herbert L. O'Conor
March 10, 1942

THE sincere hope of every person in Maryland is that our State may never experience invasion or attack. That we should consider such a thing as possible is in itself a terrible shock to the American state of mind. Nevertheless, with so much of the world overrun by the enemies of Democracy, and with the invasion of Java and New Guinea as well as other points in the Australian Archipelago fresh in our minds, we would be foolish, indeed, not to be prepared, as completely as possible, for any such happening, even here in Maryland.

Our people didn't want this war and, prior to the dastardly and cowardly attack on Pearl Harbor, the thought of sending American troops to fight in far-away lands was abhorrent to the minds of every American. Recent developments of the most threatening nature, however, have completely changed America's attitude toward the present conflict. The unexpected and continuing success of the Japanese forces, who have swept everything before them except General MacArthur's heroic band in the Philippines, have impressed on our minds most forcibly that new tactics are demanded.

That is why, in the recent past, there has become evident a tremendous demand on the part of Americans everywhere, that our leaders forsake a defensive policy and pursue this war in typical American fashion by carrying the offensive to the enemy at every possible point.

But this plan, if adopted, will make necessary additional protective forces in the states of our Country, particularly those like Maryland, situated along the coastlines. It is about this matter of necessity that I desire to speak to the people of Maryland tonight.

Let us review briefly the various steps, and then consider why and to what extent Maryland confronted with danger and what we must do at once to protect our citizens. The Federal Government faces the tremendous task of training the largest military and naval establishment in our Nation's history. After the hundreds of thousands, and even millions, of our men are trained and equipped, they must be transported, far and wide, over the seven seas to overcome the enemy outside continental United States. Every available man in the combat forces will be needed in this far-flung offensive. This means that if any number of soldiers, trained for military operations, would be retained within the United States for guard duty, or for any other routine defense purpose, that would entail a loss to our Country's striking power.

The Federal Government, of course, is the one which assumes the responsibility for the conduct of war. But the State Government has its obligation, also, to its citizens. That obligation includes protection to our people. It was for this reason that more than a year ago I asked the Maryland General Assembly to authorize the creation of the State Guard, the primary purpose of which was to have a mobile protective force ready to move in any direction to maintain the safety and security of our people and their property. It is with pleasure that I can report to our people that the State Guard is completely drilling.

The State Guard numbers approximately 2, 700 officers and men. Supplementing it is a Special Military Police Force, the members of which are on continuous duty and assigned exclusively to the guarding of our State's bridges, important water supplies, and other vital points, described by the War Department as having important bearing on the war effort. The number of this force is approximately 300.

To the credit of the members of our present Guard, it can be said that they have responded to every requirement since our Nation entered the war, despite unexpected difficulties under which they have at times been required to perform their duties. The public will understand that up until now the State's defensive efforts have consisted mainly in protecting those installations and locations which the War Department consider as vitally important.

Now, however, a greater possible danger must be faced by our people. Situated as we are and exposed as our State is, we must be prepared for the worst. Since the outbreak of hostilities at Pearl Harbor, I have been in touch, at regular intervals, with United States officials who have imparted information revealing the danger that besets us. I owe it to the people of the State to report that we are in jeopardy, and that we must be prepared for trouble both from without and from within our State.

Only today, for instance, have I been advised by the Commanding General of the First Army, in New York, that the presence and increasing activity of enemy submarines off the Maryland Coast require additional drastic measures.

With the prospect that the regular Army units will be engaged in more important operations elsewhere, and with our State Guard and Military Police assigned to particular functions, it is felt absolutely necessary to have an additional protective force-: as a home guard-for the protection of our various communities. Competent military officers, one of whom, our capable and experienced Major General Milton A. Reckord, will speak to you in a few minutes, advise that there is need of this further, wide-spread, alert defense organization to cope with and to be available instantly for any sudden attack by parachute troops, by forces landed from the sea by enemy sympathizers within our State.

I propose to meet this need by the organization in every part of the State of a Reserve Militia. The completed plan has just been approved by General Reckord, as Commander of the Third Army Corps. It offers the opportunity for every able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the "Maryland Minute Men."

The mission of the Maryland Minute Men is to furnish immediately, local protection against parachute troops, saboteurs, or organized raiding parties. It is planned that the units be confined to their own communities so that there will be assurance at all times that every residential section of Maryland will have protection.

No prescribed complete uniform will be required. Distinctive arm bands and caps or other items may be furnished by the State, the County, or by the men themselves. For the present the hard-pressed Ordinance Department of the United States Army cannot be expected to furnish sufficient arms, ammunition, or equipment. Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60, 000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations, will be expected to constitute a part of this new military organization.

Officers will be drawn from the immediate area in which they are to serve. As Army officers have pointed out to me, the familiarity of the members with their particular locality, with the terrain and road not in the respective communities, will be of great value in resisting any hostile efforts against residential areas and important public necessities.

No intensive training program will be adopted. While sufficient preparatory work must be undertaken by the Minute Men, care will be taken to avoid unnecessary demands upon their time. No guard duty is to be included as a regular part of the program for the new force.

Retired officers of the regular Army, Marine Corps or State Guard will be sought to supervise the training. The program will embrace basic field training and basic small arms instruction. The field training will include the study of terrain from the military viewpoint, establishment and maintenance of communications, practice assemblies in daylight and in dark, and other courses. Arms instructions will cover teaching how to load and unload weapons, examination of weapons as to working order; effective firing positions, special instructions in sighting and aiming, rapid firing technique, and other duties.

Military officials, in emphasizing the value of such an organization point out that the familiarity which the members will enjoy with the faces, customs and habits of their neighbors in the community, makes them most valuable in combating sabotage efforts. They will detect, even more quickly than a secret service man from the outside, any strange faces in the community, or any unusual activities on the part of local inhabitants.

The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity.

Through conferences among the Military, Naval, State Guard and Minute Men officials, operation plans for each area will be carefully prepared, I am assured by the Third Corps Headquarters. Surveys will be made to determine the importance of facilities and installations which might be subjected to sabotage and raids; the availability of Military and Naval police and State Guard forces; and the quality and type of communications which are available for notification for additional protective forces when necessary.

Based on these surveys, definite missions will be assigned each of the organizations concerned; and the proper liaison will be arranged. All available firearms will be reported and those individuals to be armed with rifles will be assigned to tasks where the long-range and accurate fire of rifles will be necessarily employed. Those to be armed with shot guns will be assigned tasks where the short range, spreading fire of shot guns will be most effective.

As I attempted to outline before, no unnecessary discipline and training will be required. However, as this is serious business there will be exacted from all members obedience to orders, sobriety, and self-sacrifice. Military advisors suggest that time need not be spent on close-order or other military drill. It is not intended that this be a parade organization. But officers and men must be willing to cooperate and to devote time and work to meet any local situation.

I should also point out another cardinal rule of the new organization. We all know that an enemy raiding party does not stop to give considerations to a victim's social background, or to his political affiliation, or to class distinction. Therefore, I give assurance that such considerations will completely absent from the organization, training and discipline of the Maryland Minute Men from top to bottom.

I now issue a call for volunteers to serve as Maryland Minute Men. Arrangements have been made to accept enlistments at once. State headquarters for the new organization will be the Office of the Adjutant General of Maryland, Fifth Regiment Armory, Baltimore.

However, persons can make known their readiness to serve at any of the State Armories, one of which is located in all the counties of Maryland except five. In these five counties; where no armories exists, namely, Garrett, Howard, St. Mary's, Calvert and Charles Counties, other headquarters will be established, the location of which will be made known through the local press.

Already arrangements are made to receive group enlistments from the membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type. The number of units to be formed in different sections of the State will depend upon the size and population of the area and also upon the important public facilities and military objectives, which are designated by the War Department in different sections of our State.

I wish to repeat that in every move, with respect to this organization, the advice and direction of Army officials will be sought, as has been the practice in connection with the organization and functioning of the Maryland State Guard.

And so, my fellow-Marylanders, I ask your support and assistance in this new undertaking which will be maintained at a minimum of expense. It will however, represent a maximum of protection by civilian soldiers, whose first duty it will be to stand in defense of their home, in protection of plants and facilities which are essential to life.

To these men, many of whom will be veterans of the last war, who incidentally may have "chafed at the bit" when they have observed their sons and younger men marching away recently to the Country's defense, let me say that here is an opportunity that will make them truly an important part of the public defense forces. Here is a function of military organizations to which they can address themselves with enthusiasm, because it will be of utmost importance and will thereby release a number of regular Army forces for combat service abroad.

Inconvenient, yes; overtime work, yes. But let us remember that hardships and privations are now being suffered for us by General MacArthur and his valiant men in Bataan. Those who do not leave United States as a part of the armed forces to avenge the wrong done to Americans and to the United States flag abroad, will be untrue to these American boys if we do not protect their homes and their communities while they are away fighting for us. Let us preserve the communities and their firesides, so that there will be a familiar place to which they will be welcomed on their return after victory has, been won.

The flower of America's young manhood now being sent to distant parts of the world will face the period of hardship and discouragement. But like the Crusaders of old, they are privileged to fare forth to free a land of civilization from the Barbarians.

America's Crusade today is to wipe the scourge of slavery from a world of Hitler and the Japanese war lords, and to establish once and for all time the freedom of man and his dignity as an individual, and this should awaken a responsive chord in every heart.

No, we didn't want this war. We went to all lengths to avoid it. And in so doing we laid ourselves open to just the very reverses that lack of preparedness has occasioned. Now that we are in this war, however, now that we know how necessary it is to fight as we have never fought before, not only to defend our Democracy, our own freedom, but to bring back freedom to all the enslaved people of the earth, we know America shall not fail. Maryland today, as in every other crisis in our Nation's history, pledges itself to stop short of nothing to preserve American ideals and American privileges for generations to come. All Related Posts (on one page) | Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:...
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent's Brief in DC v. Heller:
[David Kopel, February 13, 2008 at 1:15am] Trackbacks

District Attorneys, the ABA, and precedent in DC v. Heller

In the Supreme Court's Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicisshould compel the present Court not to recognize the Second Amendment as an individual right.

A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit's recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.

These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).


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