October-December 2008 Archive

[David Kopel, December 29, 2008 at 3:53am] Trackbacks

Isn't "Happy holidays" a form of suicide bombing too?

A recent letter to the editor of the Boulder Daily Camera explains an atheist perspective on "Merry Christmas":

Every time you wish us a Merry Christmas, you are persecuting us for our beliefs...Every time you wish us a Merry Christmas you are claiming that you have rights that we do not have. You are declaring that through your belief in a deity, you are better than us. Every time you say, "Merry Christmas" to a non-Christian, you might as well be suicide-bombing them or nailing them to a cross, placing a crown of thorns on their heads and sticking a spear in their sides.
Several follow-up letters to the Daily Camera, including one from an atheist (here, here, here, and here) contend that wishing someone "Merry Christmas" is not the same as murdering them by suicide bombing.

However, if we assume for the sake of argument that "Merry Christmas" is identical to "Now you will die, infidels," another part of the letter struck me as illogical. The letter concluded, "Happy Holidays!"

For the ultra-sensitive atheist, it is hard to see why "Happy Holidays" is an improvement over "Merry Christmas." "Holidays" is, after all, very obviously derivative of "Holy days." A scrupulously p.c. person who wishes someone "Happy holidays" might be taking care to be inclusive in case the person does not celebrate Christmas, but does celebrate Hanukkah, Eid, Yule, or Diwali. Well and good, but my own observation is that the non-Christian people who tend to pitch a fit because someone said "Merry Christmas" to them are not Jews, Muslims, or Hindus, but instead are a minority of atheists who are on the look-out for reasons to be offended. To this group, the phrase "Happy holidays," should not, logically, be any less offensive than "Merry Christmas." The latter refers to a single religious celebration, while the former aggregates a variety of religious celebrations. Indeed, the latter phrase should be even more offensive, since it reminds the readily-offended atheist of his separation not only from Christians, but also from the larger community of religious believers.

It is true that "Happy holidays" also includes Kwanzaa, which is not religious, but is founded on Afro-centrism and Marxism. (And which is celebrated by non-racist, non-Marxist African-Americans, just as some non-Christian Americans celebrate the Irving Berlin, Santa Claus Christmas.)

But what good does this do for the eagerly-offended atheist who is not African-American? "Happy holidays" refers, at most, to Kwanzaa (which is irrelevant to non-African-Americans) and to a collection of religious holidays (the very mention of which may be highly offensive to ultra-offendable atheists).

Therefore, it is my recommendation that you use the phrase "Happy holidays" if and only if you are speaking to an ultra-sensitive African-American atheist. If you speaking to a non-African-American ultra-sensitive atheist, "Happy holidays" may be an even worse form of suicide bombing than "Merry Christmas." For this group, simply say "Happy Days," thereby avoiding the incendiary word "holidays." For everyone else, you can wish them a "Merry Christmas", "Happy Hanukkah", "Cool Yule", or whatever else you want, with virtually no risk that the recipient of your glad tidings will consider you the equivalent of a suicide bomber.


[David Kopel, December 28, 2008 at 7:13pm] Trackbacks

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

The near-final version of this forthcoming article from the Texas Review of Law & Politics is now available on SSRN. I wrote the article with Carl Moody and Howard Nemerov. Here's the abstract:

There are 59 nations for which data about per capita gun ownership are available. This Article 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.

I blogged on VC about an earlier draft of this paper last spring. As is usually the case, VC commenters offered a variety of useful comments, which made the final paper better.11 Comments

[David Kopel, December 28, 2008 at 4:47pm] Trackbacks

Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment"

Despite erroneous media reports that Christmas 2008 is "over", Christmas is a 12-day festival that began on December 25, and continues until the "twelfth night" of January 5-6. Accordingly, it is not too late to send or receive Christmas cards, or to give or receive Christmas presents. Fortunately for gift-givers, Stephen Halbrook's excellent book "The Founders' Second Amendment" is now back in stock at Amazon. The first round of the "Second Amendment book bomb" had exhausted all of Amazon's inventory, and it took several days for Amazon's system to process the replenishment of supplies. Now, the book is available for immediate shipment. It is an indispensible book for anyone who is interested in Second Amendment issues. More broadly, now that originalism is becoming the leading method of constitutional interpretation, the book provides an outstanding template for examination of the range of sources which indicate the original public meaning of a constitutional provision. The book would be an excellent charitable gift for almost every library, including school libraries.

Related Posts (on one page):
  1. Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment":
  2. Second Amendment Book Bomb on Monday:

 [David Kopel, December 28, 2008 at 4:25pm] Trackbacks

Do you like op-eds which pretend to be news articles?

If so, newspaper trends are going your way, as I explain in my latest column for the Rocky Mountain News. The cutting edge provider of such slanted "news" is ProPublica, a non-profit funded by the leftist Sandler family. Newspapers get the ProPublica "investigative journalism" articles for free, so in a time when newspapers must cut production costs, free articles can be very attractive. Even if they are one-sided argumentative pieces which have more in common with an op-ed than with a real investigative news article. 27 Comments

[David Kopel, December 22, 2008 at 5:14pm] Trackbacks

St. George Tucker, Saul Cornell, and Justice Stevens

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights has just been published by the Northwestern University Law Review Colloquy. The article, by David Hardy, will also appear in the printed edition of the N.W.U.L. Rev.

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone's Commentaries was the by far the leading legal treatise in the Early Republic. Tucker included extensive analysis, in footnotes and in an appendix, explaining how the English common law of Blackstone had been changed in America. Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia's majority opinion in Heller quoted from Tucker's American Blackstone.

Justice Stevens' dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker's 1791-92 lecture notes described the Second Amendment as relating only to the militia.

David Hardy's article reviews Tucker's lecture notes, as they involve various freedoms enumerated in the Bill of Rights. Hardy finds that Tucker's view of the Constitution was far more libertarian (regarding issues such as free speech and press, or warrantless searches) than either modern Supreme Court doctrine, or the views sometimes ascribed to the Founders.

As for the Second Amendment, Hardy finds that Cornell's article, and therefore Justice Stevens' opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker's description of the Second Amendment. The language was from Tucker's explanation of Article I's grant of militia powers to Congress. Tucker's description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker's 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.

The Cornell article is St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006). Perhaps the error in article, and the derivative error in a Supreme Court opinion, could have been averted with better cite-checking.

Readers interested in Tucker may also be interested in my article The Second Amendment in the Nineteenth Century (BYU L. Rev.)(also discussing the scholarship of Tucker's son Henry St. George Tucker, and his grandson John Randolph Tucker), and in Stephen Halbrook's response to Cornell, St. George Tucker's Second Amendment: Deconstructing "The True Palladium of Liberty" (Tenn. J.L. & Pol'y).87 Comments

[David Kopel, December 22, 2008 at 1:23pm] Trackbacks

Boys go to ESPN to get more stupider

In my December 13 column for the Rocky Mountain News, I pointed to declining interest in reading as one of the reasons for the financial problems of newspapers. One response I received was from a professional sports journalist. I've edited it a little bit, and omitted some details. The writer's point of view is strongly stated, but, I think, basically correct:

...It was nice to see the word "cretin" to describe the vast numbers out there who don't think reading is important.

All I can say to people who don't care right now about whether there's a local newspaper or two in town - or don't think it's important to democracy - is: enjoy living in a Big Brother, oligarchy some day real soon. Because if there is no independent, operable press keeping a check on power and exposing its wrongs then that is for sure where we'll be headed as a country.

I also think it is NO coincidence that our country is where it's at right now, because people aren't reading enough - and newspapers, included.

Everybody just wants to be "entertained" now, and for them that means having nothing to do with books or newspapers and everything to do with stupid video games, "reality" (there's a laugh, there's nothing real about it) TV and other total wastes of time.

Now that many of these people are out of a job and wondering why, because they often didn't/don't have the intellectual capacity to do think themselves out of their predicament and why they got into it in the first place - my response is: maybe you should spent more time reading newspapers and learning about your world and your community, instead of wanting to be "entertained" all the time by stupid stuff.

And I'll also freely admit that sports has played a large role in our great dumbing down of society. ESPN is a great, wildly profitable business. It's also a killer of young men's minds. People who might normally spend a day reading or going outdoors and meeting people and learning more about the world instead stay shut indoors watching crap like televised poker and two-hour long NFL pre-game shows and moronic round-the-horn gasbag, sports "debate" shows.

Add in all the dumb radios sports talk, regional 24-hour sports networks, and you've got a lot of absolute crap that young guys spend their time watching instead of picking up a good read.

I work in the sports media business, so I sound like a hypocrite, and maybe I am. But I think I'm telling the truth. I TRY to at least engage my audience a little bit, with some humor and intelligence, and not just blowhardedness, like many TV sports media types do.


[David Kopel, December 19, 2008 at 7:08pm] Trackbacks

How to spend the Obama trillion: 100k per car to retrofit hybrids

My Independence Institute colleague Todd Shepherd (formerly a reporter for KOA radio) runs the Complete Colorado website. It's laid out like the Drudge Report, and it presents Colorado news--including original reporting by Todd. He's just published an article on the 2.25 billion dollars in eco-pork that ten Colorado municipalities are seeking as part of the impending "stimulus" package. Among the requests from the city of Boulder is six million dollars in order to convert 60 cars (in the city, county, and University of Colorado fleets) from ordinary hybrids to plug-in hybrids. That's a hundred thousand dollars per car. Even in eco-conscious Boulder, it is very, very unlikely that voters would approve spending their own tax money on such an inefficient spending project.28 Comments

[David Kopel, December 19, 2008 at 5:26pm] Trackbacks

Blogger Consensus: Card-check's chances iffy

The National Journal's latest poll of leading political bloggers from the Left and Right is now available. They disagree sharply on the Obama stimulus. The Left's average for the right amount for the stimulus was $746 billion. The Right's average was $34 billion, with plenty of Righties, myself included, favoring "zero" as the ideal amount. I wrote: "The solution to economic problems caused by excessive borrowing is not to borrow lots more money."

As to whether Obama should push card-check legislation (the proposal to deprive employees of the right to a secret ballot vote on whether to unionize), 88% of the Left says yes, while 76% of the Right says no. The right-wing support for Obama pushing card-check comes at least partly from the belief that it will harm him politically. I agree with the political observation, but I'm much more concerned with protecting rights than with Obama's political fortunes. I wrote: "Taking away the secret ballot is a direct assault on the right of free association."

Will card check pass next year? 44% of the Left thinks so, as does 24% of the Right. Several bloggers predicted that card-check would be pushed, but would eventually be traded off to ensure passage of other items on the union lobby agenda.34 Comments

[David Kopel, December 14, 2008 at 1:00pm] Trackbacks

Second Amendment Book Bomb on Monday

Monday is Bill of Rights Day. It is also the day for the Second Amendment Book Bomb, for Stephen Halbrook's outstanding new book The Founders' Second Amendment: Origins of the Right to Bear Arms.

After the success of the Ron Paul "money bombs" last fall (when Paul supporters all made donations on a single day), Ron Paul supporters used the same concept this spring to launch a "book bomb," which turned Rep. Paul's book into the #1 best-seller on Amazon.com, and sent it to the top of the N.Y. Times bestseller list. Now, Dr. Paul is leading the campaign for a book bomb for another author.

On Monday, Stephen Halbrook will be speaking at the Independent Institute, in Oakland, California. (The Independent Institute is not related to the Independence Institute, which is where I work, in Golden, Colorado.) They are launching the book bomb, with an ambitious objective of one million sales for Halbrook's book.

I read the Halbrook book when it was in page proofs earlier this year. It is by far the best historical examination of the Second Amendment in the Founding Era. No matter how advanced your knowledge of the Second Amendment, you will learn a great deal from this book. Alan Gura used the book extensively in preparing his brief in D.C. v. Heller.

The Founders' Second Amendment: Origins of the Right to Bear Arms is an excellent gift for anyone you know who is interested in the Second Amendment or legal history. It is also a fine gift for your local school library.

Over the last 30 years, Stephen Halbrook has done more than any other scholar to bring to light the history of the Second Amendment. He has a 3-0 record in the Supreme Court, and in Heller, he wrote the Congressional amicus brief on behalf of 55 members of the Senate, the Senate President (Richard Cheney), and 250 members of the House of Representatives.

From the Book Bomb link, you can learn more about the book, and have the opportunity to order the book from Amazon.com, BarnesandNoble.com, or BooksAMillion.com.

Related Posts (on one page):
  1. Twelve Days of Christmas: Still time to buy "The Founders' Second Amendment":
  2. Second Amendment Book Bomb on Monday:

[David Kopel, December 13, 2008 at 5:15pm] Trackbacks


Hugh Hewitt is among the leading conservatives who are urging conservative or libertarian public officials and commentators to start using Twitter. The Top Conservatives on Twitter website offers a wealth of feeds to which one can subscribe. If you would like to subscribe to my feed, it's @davekopel. (Go to http://twitter.com/davekopel, and click "follow.") My twitterfeed copies the content from my RSS feed (http://www.davekopel.org/feed.xml), which supplies links to my latest articles; the twitterfeed also includes my random thoughts on various subjects. Some readers may be interested in the twitterfeed of my Independence Institute colleague Ben DeGrow (http://twitter.com/bendegrow), who writes on Colorado education issues.13 Comments

[David Kopel, December 13, 2008 at 3:15am] Trackbacks

Web, not bias, offing papers

So I argue in my column for today's Rocky Mountain News. I don't deny that there's a problem with bias in most of the MSM, nor that the bias has driven away some readers. But I reject the idea that bias is the most important factor in the mortal peril now facing so many American newspapers. As I see it, the problem has far more to do with the loss of classified advertising revenue, and with declining interest in reading. It would be nice, in a way, if the newspapers' financial problems could be traced to ideological issues, but I think that other factors are much more significant. The topic is particular interest to me these days, since on December 4, Scripps announced that the Rocky Mountain News--the paper for which I currently write, and for which my father worked full-time in the 1950s--is being put up for sale. If a buyer is not found within 4-6 weeks, Scripps will probably close the paper. Michael Roberts, the media columnist for the Denver weekly Westword, has an excellent, in-depth analysis of the situation.128 Comments


[David Kopel, December 12, 2008 at 12:14pm] Trackbacks

Blogger poll: Obama's First Year:

The National Journal has published its latest poll of leading political bloggers. The results: Majorities of left-leaning and right-leaning bloggers both agree that Obama will bring "a little" change to the way Washington works. A majority of the Left and Right agree that partisan divisions next year will either stay the same or increase. Lefties expect that conservatives will be biggest thorn in Obama's side, whereas the Righties expect Liberal Democrats to be an even bigger thorn for him.

Majorities on both sides agree that Obama's smartest course would be to "Compromise only as much as is necessary to win passage" for his agenda, and not to pad his majorities with further compromise. The Left thinks that the smartest course for Republicans would be to downplay their differences with Obama, but the Right overwhelmingly disagrees. The Left thinks that the greater risk for Obama is not tackling enough issues, whereas the right sees the greater risk in Obama's spreading himself too thin by taking on too many issues.

The Left bloggers were asked how much energy the Democrats should spend investigating the Bush administration. "A moderate amount" was the choice of 60%. The Right was asked who they would like to see become the leading voice of the Republican party next year. The winners were Bobby Jindal and Sarah Palin, each with 18%. Although I like Palin and would be happy to see her elected President, I voted for Jindal, whom I described as "Brilliant, principled, articulate." 40 Comments

[David Kopel, December 10, 2008 at 12:34am] Trackbacks

Only One Law Review Publishes BOTH Obama and Kopel:

That review is the Charleston Law Review. President-elect Obama's foreword to volume 2, issue 1 (2007) is available here.

As for my own article in Charleston, it's forthcoming in volume 3, which is at the printer. But available now in final form at SSRN: Pacifist-Aggressives vs. the Second Amendment: An Analysis of Modern Philosophies of Compulsory Non-Violence.

The article begins with the observation that, domestically and internationally, there are many religious organizations and leaders who denounce self-defense, and who seek to ban or drastically restrict guns in order to impose their own morality. The article examines some leading religious pacifist philosophers, and some historical examples of how pacifism has worked in real-world conditions.

The article has high praise for John Howard Yoder (perhaps the greatest pacifist writer of all time), and for Thomas Merton (an influential advocate of non-violence, but not a pacifist). The article is more critical of Stanley Hauerwas, more critical still of Leo Tolstoy, and dismayed with the shallow and factually inaccurate writings of Tony Campolo.

The article sets the record straight on the Danish rescue of the Jews during World War II. King Christian X never wore a yellow star. The Danish response to the Nazis was very cowardly at the start, at a time when bravery might have changed the course the war. The 1943 rescue of the Danish Jews, smuggling them to Sweden, was very noble, but it was not an example of successful pacifism in action. Switzerland, which was armed to the teeth and ready to fight, ended the war with even a better record of protecting its native Jews than did Denmark.

The American Civil Rights Movement used pacifist tactics at some times, even as civil rights workers armed themselves for protection against Ku Klux Klan attacks. The slogan "violence never solves anything" is the ethical equivalent of flat-Earth geography. It is a purportedly empirical claim which is contradicted by ample and obvious evidence.

In the real world, there are plenty of brave pacifists, including the Moriori tribe of the Chatham Islands, who chose to suffer genocide rather than use violence. The article does not attempt to refute arguments that pacifism is mandated by Christian scripture, or by other sources of religious authority. Rather, the article suggests that the argument which some pacifists make--that pacifism always, necessarily, leads to better real-world results, is empirically false. In a free society, the government should not force pacifists to use force. Likewise, pacifists should not attempt to use government force to deprive other people of the means or the right of self-defense.

VC readers saw a draft version on this article on SSRN a little over a year ago. The Charleston staff did a great job with the article; it's a tighter, more precise piece thanks to their cite-checking. Thanks also to Eugene Volokh, for coining the term "pacifist-aggressives." He too has been published in a law journal which has also published Obama, namely the Harvard Law Review. 17 Comments

[David Kopel, December 8, 2008 at 11:47am] Trackbacks

Blogger polls: Obama cabinet, and automaker corporate welfare

The National Journal's latest surveys of left-leaning and right-leaning bloggers are now available. Regarding the auto bailout, almost all left-leaning bloggers support it, provided there are major concessions from management only, or from management plus the unions. Right leaning-bloggers are strongly opposed, although a minority do favor a bailout if there are concessions by everyone. My own view was, "The auto companies and the unions need to renegotiate their retirement and medical programs. A bailout will impede, rather than assist, the necessary restructuring of the auto business."

On the Obama cabinet, the Lefties and Righties both like Treasury Secretary Geithner (a topic on which I was a minority, since he seems poised to continue the Bush policy of corporate welfare for the financial industry). The Right liked Defense Secretary Gates, and the Left liked Secretary of State Clinton. The biggest gap was on Attorney General Holder, who got a B+ from the Left and a D+ from the Right. In light of Obama's primary campaign rhetoric, I thought that the Gates/Clinton duo is a much more hawkish, pro-defense team than might have been expected. As for the Attorney General nominee, I wrote that "Holder served as No. 2 to one of the worst, most lawless attorneys general in U.S. history. His role and his lies in the Elian Gonzalez abduction were despicable." Although the poll didn't ask, I would also put Alberto Gonzalez in the group of "worst, most lawless attorneys general in U.S. history." Thank goodness he's not on the Supreme Court.35 Comments

[David Kopel, December 3, 2008 at 7:02pm] Trackbacks

Is Heller like Roe v. Wade? A reply to Judge Wilkinson:

Fourth Circuit Judge J. Harvie Wilkinson, III, is the author of a forthcoming article in the Virginia Law Review, Of Guns, Abortions, and the Unraveling Rule of Law. Wilkinson criticizes the Supreme Court's decision in District of Columbia v. Heller, and argues that the majority opinion is wrong for the same reasons that Roe v. Wade was wrong: both cases violated "judicial values," such as deference to legislative decisions, avoidance of political thickets, and federalism. The draft article has attracted much favorable attention from the media, including the New York Times, Washington Post, Associated Press, and George Will.

In a working paper now available on SSRN, Nelson Lund and I critique Judge Wilkinson's equation of Heller and Roe. Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III argues that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

After addressing the Roe analogy, our article examines Judge Wilkinson's stated rules of judicial restraint. We contend that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. The article suggests that Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. Although the Wilkinson article is couched in the language of judicial restraint, it amounts to an endorsement of judicial lawlessness. 127 Comments

[David Kopel, November 27, 2008 at 2:55am] Trackbacks

Thursday Song Lyric: We Gather Together

The great Dutch hymn "We Gather Together" celebrates Dutch victory in a battle of the war of independence from Spain. The hymn was adopted by Americans because it resonated so much with their own circumstances. It's a very relevant song this year, too, as the war between freedom and tyranny continues. Here's my VC post on the song, including the full lyrics, from 2005. And here's a good version of the song, from YouTube. YouTube has plenty of other versions too, if you want to hear pure organ music, or a church performance in Spanish. 35 Comments

[David Kopel, November 25, 2008 at 8:05pm] Trackbacks

How to Interpret the Constitution:

University of Montana Law Professor (and Independence Institute Senior Fellow) Rob Natelson explains it all in this 32 minute podcast. I interviewed Rob for the iVoices.org podcast series, and we talked about Ex Post Facto, Indian Commerce, Alexander Hamilton's duplicity, and, most of all, constitutional hermeneutics. 2 Comments

[David Kopel, November 24, 2008 at 12:04pm] Trackbacks

Two new books on the Heller case

Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment, by Brian Doherty (an editor of Reason magazine), premieres this week. The book is published by the Cato Institute. Here's the Cato site for the book, including a good video commercial. I read a pre-publication draft in September, and thought it was a solid history of the case, including the broader context around the case.

This afternoon (4 p.m. Eastern Time) Cato will host a forum on the new book, which you can watch online.

The other book on Heller is co-authored by Alan Korwin and me. The Heller Case: Gun Rights Affirmed! Is much larger in page count and narrower in focus than the Cato book. The Cato book is a journalistic story of an important case, similar to Gideon's Trumpet by Anthony Lewis. In contrast, The Heller Case is a reference book on Supreme Court jurisprudence. It's a sequel to the Kopel-Halbrook-Korwin book from 2003, Supreme Court Gun Cases. That book provided the text, along with commentary and analysis, for all 92 Supreme Court cases involving the Second Amendment (even in passing), firearms law, or self-defense law. The new book, The Heller Case, provides summaries of those 92 cases, plus the full text (the relevant parts) with analysis of three recent cases on firearms/self-defense (Brosseau, 2004; Small, 2004; Castle Rock, 2005). And then there is the full text of Heller itself, the 96th Supreme Court gun case. That's followed by 80 pages of analysis of the meaning and implications of Heller from scholars such as Glenn Reynolds (and me), and reactions from pro-rights groups, anti-rights groups, and also contrarian gun rights advocates who warn that the Heller will destroy the Second Amendment. Plus outline level summaries of every one of the 67 amicus briefs. And Alan Korwin's description of the scene on argument day, and life in Hellertown (the two-day camp-out scene outside the Court building).

Gun Control on Trial and The Heller Case would be, in my biased view, fine additions to your legal library, or great gifts for anyone who you know who is interested in Second Amendment issues.1 Comments

[David Kopel, November 21, 2008 at 6:54pm] Trackbacks

Should there be judicial performance evaluation for federal judges? Campaign finance limits for state judges?

Most states have commissions which evaluate the performance of state judges. Would it be a good idea to institute similar performance review of federal judges? For judicial elections, are campaign contribution/spending ceilings constitutional? What about bans on candidates personally soliciting contributions? There are the topics of a symposium issue of the Denver University law review, including a foreword by Justice O'Connor. Comments on these topics are very welcome--but only after the commenter has read at least one of the articles in the symposium. 16 Comments

[David Kopel, November 20, 2008 at 7:41pm] Trackbacks

Eric Holder on firearms policy:

Earlier this year, Eric Holder--along with Janet Reno and several other former officials from the Clinton Department of Justice--co-signed an amicus brief in District of Columbia v. Heller. The brief was filed in support of DC's ban on all handguns, and ban on the use of any firearm for self-defense in the home. The brief argued that the Second Amendment is a "collective" right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the FDR administration. A brief filed by some other former DOJ officials (including several Attorneys General, and Stuart Gerson, who was Acting Attorney General until Janet Reno was confirmed) took issue with the Reno-Holder brief's characterization of DOJ's viewpoint.

But at the least, the Reno-Holder brief accurately expressed the position of the Department of Justice when Janet Reno was Attorney General and Eric Holder was Deputy Attorney General. At the oral argument before the Fifth Circuit in United States v. Emerson, the Assistant U.S. Attorney told the panel that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen.

As Deputy Attorney General, Holder was a strong supporter of restrictive gun control. He advocated federal licensing of handgun owners, a three day waiting period on handgun sales, rationing handgun sales to no more than one per month, banning possession of handguns and so-called "assault weapons" (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration, and mandatory prison sentences for trivial offenses (e.g., giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday). He also promoted the factoid that "Every day that goes by, about 12, 13 more children in this country die from gun violence"--a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children." (Sources: Holder testimony before House Judiciary Committee, Subcommittee on Crime, May 27,1999; Holder Weekly Briefing, May 20, 2000. One of the bills that Holder endorsed is detailed in my 1999 Issue Paper "Unfair and Unconstitutional.")

After 9/11, he penned a Washington Post op-ed, "Keeping Guns Away From Terrorists" arguing that a new law should give "the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale." He also stated that prospective gun buyers should be checked against the secret "watch lists" compiled by various government entities. (In an Issue Paper on the watch list proposal, I quote a FBI spokesman stating that there is no cause to deny gun ownership to someone simply because she is on the FBI list.)

After the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional in 2007, Holder complained that the decision "opens the door to more people having more access to guns and putting guns on the streets."

Holder played a key role in the gunpoint, night-time kidnapping of Elian Gonzalez. The pretext for the paramilitary invasion of the six-year-old's home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder claimed that Gonzalez "was not taken at the point of a gun" and that the federal agents whom Holder had sent to capture Gonzalez had acted "very sensitively." If Mr. Holder believes that breaking down a door with a battering ram, pointing guns at children (not just Elian), and yelling "Get down, get down, we'll shoot" is example of acting "very sensitively," his judgment about the responsible use of firearms is not as acute as would be desirable for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns. 

[David Kopel, November 18, 2008 at 4:09pm] Trackbacks

Analyzing Colorado Election Results:

Here's a new podcast in which Jon Caldara and I have a quick discussion of Colorado's election results, including the defeat of several tax increase ballot issues, and the defeat of Marilyn Musgrave. It's a little over 7 minutes long, and available in MP3 on iVoices.org. 2 Comments

[David Kopel, November 9, 2008 at 8:34pm] Trackbacks

What to do on FedSoc Eve

The Federalist Society's annual conference in Washington, D.C., opens on Thursday, November 20. The evening before, the Mason Law Federalist Society and American Constitution Society are co-hosting a symposium on D.C. v. Heller. The events takes place from 5-8 p.m. at GMU Law School, in Arlington, Virginia. Speakers include Steve Halbrook, Nelson Lund, Clark Neily, John Frazer, and me, on the side of the Standard Model, and Alan Morrison, Dennis Henigan, and others, on the opposite side. My presentation, in the panel "Looking Back at the History of the 2nd Amendment," will be about the natural law roots of the Second Amendment; it's the topic of my forthcoming article in the Syracuse Law Review. The event is free, although if you want the 3 CLE credits, there is a $25 fee. Registration is here. 14 Comments

[David Kopel, November 5, 2008 at 2:57am] Trackbacks

How the Second Amendment Fared Tonight:

U.S. House so far: -11. Losses in Colorado 4 (Markey over Musgrave), Florida 8 (Grayson over Keller), Florida 24 (Kosmas over Feeney), Michigan 9 (Peters over Knollenberg), NJ 3 (Adler over Myers), NY 13 (McMahon over Straniere), NY 25 (Maffie over Sweetland), Nev. 3 (Titus v. Porter), Penn. 3 (Dahlkemper over English), and Vir. 11 (Connolly over Fimian). For all races, the Democrat is listed first.

The remaining undecided races with Second Amendment implications are: Alaska (Berkowitz v. Young), Calif. 4 (Brown v. McClintock), Idaho 1 (Minnick v. Sali), Michigan 7 (Schauer v. Wallberg), Ohio 1 (Driehaus v. Chabot), Ohio 15 (Kilroy v. Stievers), and Washington 8 (Burner v. Reichert).

Just to guess, let's say that Democrats win 4/7 of these races. The final result is -15 for the Second Amendment. Not good, but much better than the worst-case scenario of -26 I noted last week.

The new House of Representatives will have a pro-gun majority on a normal vote. The Pelosi-Hoyer leadership will certainly not be pro-Second Amendment; but that leadership has recognized that its majority is precarious without pro-gun Democrats. However, a generally sympathetic majority does not guarantee victory for the pro-rights side if the President invests major political capital, as President Clinton did in 1994 to pass the ban on so-called "assault weapons" by a single vote.

U.S. Senate so far. In Virginia, a +1 as Democrat Mark Warner wins the seat vacated by the retirement of Republican Jim Warner. Elsewhere, -4 from Democratic wins in Colorado (Udall), NC (Hagen), NH (Shaheen), and NM (Udall).

Still undecided Senate races:

Gun-owners win either way in Alaska, where Stevens might be the Comeback Kid. He leads with 66% of the vote reported. I think that Stevens is emblematic of the culture of institutionalized corruption which I admire Sarah Palin for fighting. But I also think that the prosecutorial tactics (including the illegal concealment of evidence) were so abusive in U.S. v. Stevens that the judge should have dismissed the charges.

The two other undecided Senate races are Oregon (Merkley v. Smith) and Minnesota (Franken v. Coleman). Both are tight as a tick. The most probable result would be one win by each party. So the final Senate result would be -4.

Bottom line: More than enough votes to hold a filibuster, if the Senators with the votes have the will to hold. Especially considering that there are about eight Democrat Senators who would readily self-identify as "pro-gun" and several more who might vote that way. And considering that the Republican caucus contains no Republicans worse than a C (as graded by the NRA).

Governor losses. -1. In Missouri, Democrat Nixon replaces Republican Blunt, who did not run for re-election. There is a potential gain if Republican Rossi wins the re-match of the race which Democrat Gregoire perhaps stole in 2004.

President. Based on past record, certainly a -1. One important difference between our last Democratic President and our next one is the latter has shown himself to be much more self-disciplined. Accordingly, it is possible that he will not waste his political capital on a reckless culture war against gun owners, as President Clinton foolishly did.

So perhaps President Obama will spend his political capital elsewhere, and be a -0.1 President on the gun issue. The approach would be in line with the positive, unifying themes that Obama presented on victory night in Iowa last January, and with his eloquent victory speech tonight.

I don't know if President Obama will be so temperate. But anyone who fears for the worst can still hope for the best.

Update: In the Senate races, Stevens and Coleman won (but there will be a recount for Coleman), and Smith is leading with 70% of the vote in. Chambliss may face a run-off in Georgia. So thus far, the Senate count is -3.

In the House, the pro-Second Amendment candidate won the following races which were undecided: Alaska, California, and Ohio 15. Reichert has a slight lead in Washington 8, with 40% of the vote in. So the final result in the House is -14, or -15 if Reichert loses. There are probably still enough votes in both houses of Congress to pass positive legislation, but not enough to over-ride what would be a near-certain presidential veto. And I doubt that the leadership of either house would put President Obama in the position of having to veto a gun bill. 19 Comments  

[David Kopel, November 3, 2008 at 6:59pm] Trackbacks

Bloggers' Predictions for Tomorrow, and Analysis of the Role of Blogging in 2008

National Journal assembled 46 leading bloggers from the Left and the Right to predict the results of the presidential election, as well as some other key races. The results are sorted by Left and Right. To the extent that one might view negative predictions as a Declaration Against Interest, there are the following interesting results: The majority of Left bloggers think Obama will lose Montana. The majority of Right bloggers think McCain will lose Pennsylvania; that Republicans John Sununu (N.H.) and Elizabeth Dole (N.C.) will be defeated for re-election; and the Democrat Beverly Perdue will be elected Governor of North Carolina.

The various bloggers also offer their comments on the role that blogs played in the 2008 election cycle, and some guesses about the biggest surprise on election night. 6 Comments

[David Kopel, October 30, 2008 at 2:23pm] Trackbacks

Key Second Amendment races in 2008:

My article today for National Review Online examines every Governor and U.S. Senate race, and the top 50 U.S. House races, to see which races have important implications for the Second Amendment, and which do not. Bottom line: the worst case scenario is a loss of 7 pro-Second Amendment votes in the Senate, and 26 in the House. The good news is that things could be a lot worse without the many pro-RKBA Democrats who are running. On Tuesday night, Florida and New York will be the most important states to watch for House races. 9 Comments

[David Kopel, October 29, 2008 at 3:05pm] Trackbacks

Taiwan's growing trade with China: A national security threat?

Last Friday, I presented a paper at a symposium at the University of Chicago's International House. The paper was part of a symposium on "Taiwan's New Approach: Opportunities and Challenges for President Ma Ying-jeou's Government." The paper is titled Poisoned Milk and the Poisoning of Democracy: Some Cautions about China Trade and Taiwan Sovereignty. It argues that Taiwan should make national security the foremost consideration in trade policy with China. This would support liberalization of Chinese tourism and Chinese students being allowed to study in Taiwan, the better to win the hearts and minds of the Chinese people. The paper suggests that--for purposes of human rights, and to sow the seeds for long-term political reform in China--new Taiwanese foreign direct investment in China be required to go to businesses which allow Chinese workers to elect a workers council. Taiwan should energetically develop its trade with India, as an alternative to China; should further restrict Chinese food imports; and should get rid of trade negotiators who have business interests in China. Allowing economic integration with China without regard for national security could, the paper suggests, lead to the destruction Taiwan's sovereignty, independence, and freedom. 22 Comments

[David Kopel, October 22, 2008 at 1:45pm] Trackbacks

Origins of the phrase "reverse discrimination"

Do any commenters have information about when this term was first used, and who thought it up? The earliest use in a court case I have found is in a New York decision in 1964, but there appear to be prior uses starting at least in the 1950s. There is an urban legend that the term was invented by a Klansman. Do commenters have any knowledge about that claim? 15 Comments

[David Kopel, October 20, 2008 at 2:57am] Trackbacks

The Paranoid Style in American Politics

Rocky Mountain News columnist (and University of Colorado law professor) Paul Campos used the famous essay by historian Richard Hofstadter as the template for a column last Wednesday, criticizing Republicans. In my media analysis column for the News on Saturday, I suggested that--at least based on the evidence within Campos's column--"the paranoid style" was more accurate as a description of Campos's own approach. 38 Comments

[David Kopel, October 16, 2008 at 4:53pm] Trackbacks

Obama's Real Records on Guns & Sporting Issues in Illinois

In a recent interview with Field & Stream, Barack Obama stated, "if you talk to sportsmen in my home state of Illinois, they will tell you that I've always been a forceful advocate on behalf of the rights of sportsmen, on behalf of access for sportsmen and hunters. I've been somebody who, well before the recent Supreme Court case, stated my belief that the Second Amendment was an individual right." In a podcast for iVoices.org, I interviewed Richard Pearson, the Executive Director of the Illinois State Rifle Association. Pearson has been lobbying on sporting and right to arms issues at the Illinois legislature since 1989. He has more first-hand knowledge of Obama's record on these issues than anyone except Obama himself. In the 20-minutes podcast interview, Pearson suggests that Obama's claim about his record is extremely inaccurate.

As for Obama's credibility on Second Amendment issues, an article by David Hardy, on the Pajamas Media website, points out that during Obama's tenure on the Board of Directors of the Joyce Foundation, the Foundation spent a great deal of grant money for a long-running effort to prevent the Second Amendment from being recognized as an individual right applicable to Americans who are not in the National Guard. 127 Comments

[David Kopel, October 14, 2008 at 8:50pm] Trackbacks

Some Reasons Why Polls May Be Inaccurate

Back in the early 1990s, Gary Mauser (Simon Fraser University, British Columbia) and I wrote an article, originally published in Political Communication & Persuasion, explaining why polls are sometimes inaccurate as measures of public opinion. The article is titled 'Sorry, Wrong Number': Why Media Polls on Gun Control are So Often Unreliable, and although the focus is on polls about gun control, the article observes some general problems with polling. If Senator Obama on election day significantly underperforms, or overperforms, what the polls predict, there will be many possible causes, other than the "Bradley Effect" or the "Reverse Bradley Effect." There are many factors, other than race-consciousness of the interviewees, which may cause a gap between opinion polls and actual votes. 37 Comments  

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