Kopel October-December 2009 Blog Archive

More on the Chicago brief in McDonald

David Kopel • December 31, 2009 4:08 am

Josh Blackman's thoughtful analysis here. The brief  is here.


Constitutionality of the "Nebraska Compromise"

David Kopel • December 23, 2009 2:02 pm

The original "Nebraska Compromise" (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. "Cornhusker kickback" is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It's not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the "(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper' requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness." However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the "Cornhusker kickback," they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).

Categories: Congress, Constitutional History, Necessary and Proper, Originalism, Supreme Court

Constitutional suits against Obamacare

David Kopel • December 22, 2009 4:43 pm

FoxNews reports that the Liberty Legal Institute and the Fund for Personal Liberty/10th Amendment Foundation are contemplating constitutional lawsuits against certain provisions of Obamacare. As various elected officials and public interest organizations consider their own litigation strategies, it would be helpful for them to know about how well the aforesaid organizations might present a constitutional case. Accordingly, I solicit comments from people who are familiar with the constitutional litigation track records of these two organizations. Do not offer comments about your views of the merits of the constitutional case about Obamacare. Please confine yourself to fact-based discussion of the strengths and weakness of LLI and FPL as constitutional law firms.

Categories: Health Care, Public Interest Law

Privileges or Immunities Extravaganza

David Kopel • December 21, 2009 3:45 pm

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment's Due Process clause, or under the Privileges or Immunities clause. There's been plenty of interesting scholarship recently on Privileges or Immunities. Here's a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading–including in Supreme Court opinions–was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH's most egregious error was in nullifying the principle of "paramount national citizenship" which lay at the heart of the ideology of the 14th Amendment's advocates. Revitalizing the PI clause should not lead to the abandonment of "substantive due process." This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of "due process" substantively prohibited certain arbitrary acts by legislatures (e.g., giving A's property to B) even if the proper procedures were followed.

Kenneth A. Klukowski,  Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195 (2009). Argues that SH should be affirmed, and that the Second Amendment can be protected against state/local infringement by the PI clause, because the Amendment fits under SH's restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of 2d Amendment rights, since the former applies only to citizens. Warns that overruling SH could provide a future Court with too many opportunities to fabricate novel "rights" out of PI.

Ilya Shapiro & Joshua Blackman. Opening Pandora's Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, Georgetown J.L. & Pol'y (forthcoming). Addresses the concerns raised about a revived PI clause–in particular that the "Constitution in 2020″ professors are eager to use PI to create positive rights to various forms of government spending, and to use PI to import the p.c. "norms" which are supposedly found in international law. Shapiro and Blackman argue that the current Court should be proactive, and should use McDonald to write a strong opinion which declares that PI protects the same set of rights as are protected in Washington v. Glucksberg (traditional rights deeply embedded in American history). Under the Glucksberg standard, the right to arms and the right to self-defense would clearly be protected by PI. Notably, the authors contend that the term "incorporation" is incorrect. The PI clause directly protects various rights, whether or not those rights are enumerated in the Bill of Rights. Thus, a proper reading of PI would require states to respect the arms rights and self-defense rights of citizens (even if the Second Amendment had never been written) because those rights meet the Glucksberg test. 

Klukowski and his colleague Ken Blackwell have been carrying on a lively op-ed and Internet debate with Shapiro/Blackman. A long blog post today by Shapiro, on Cato@Liberty, contains links to both sides of the discussion.

In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)

In early January, I will be doing a podcast interview of Shapiro. As many readers know, Shapiro is Cato's Senior Fellow in Constitutional Studies, and is Editor-in-Chief of annual Cato Supreme Court Review; I am an Associate Policy Analyst with Cato. Commenters are welcome to suggest questions for the podcast. It would be appreciated if every would-be commenter read at least one of the aforesaid articles before commenting. This will help the comments section advance the discussion, rather than merely retreading familiar arguments.

Categories: Constitutional History, Constitutional Theory, Fourteenth Amendment, Guns, Supreme Court

Justice Ginsburg: Supreme Court may eventually overrule Heller

David Kopel • December 20, 2009 12:58 pm

On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a "future, wiser court."  As an example, she pointed to the dissent in District of Columbia v. Heller.

If any VC readers attended the luncheon, any details or clarifications would be welcome. Categories: Guns, Supreme Court      128 Comments

The Right to Arms in the Living Constitution

David Kopel • December 19, 2009 1:55 pm

That's the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo's printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here's the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century. "Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a "dead constitution," judges simply impose their personal values, and nullify parts of the Constitution which they do not like. When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right. In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right. As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution. From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a "dead constitution," judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

For discussion of Judge Benjamin Cardozo's viewpoint on  self-defense, see pages 15–17 of the California and Nevada district attorneys' amicus brief in McDonald.

  Categories: Congress, Constitutional History, Fourteenth Amendment, Guns, Popular Culture, Registration, Supreme Court     50 Comments

Bloggers agree: Obama foreign policy not very good. Both parties deserves blame for public's low opinion of Congress

David Kopel • December 18, 2009 12:39 pm

This week's National Journal poll of political bloggers asked for a grade for President Obama's foreign policy. The average grade from the Left was a C. From the Right, it was a D-. I gave him the highest grade of any voter, which was a B, and explained: "Finally did the right thing on the Afghanistan surge. His most important speech to the world -- in Oslo -- was magnificent. Badly mishandled Honduras at the start by opposing the lawful removal of Zelaya, but no long-term harm was done." Next year's grade might be much lower, in that the shared Clinton-Bush-Obama policy of all talk and no action about Iran's nuclear weapons development may get to the terminal point of Iran acquiring nuclear weapons.

Question 2 asked the Left "How much is the Democratic Party to blame for Congress' low standing in the polls?" The Right was asked the same question about Republicans. Eighty-six percent of the Left said that Democrats were a "a great deal" or "somewhat" to blame. On the Right, nobody said that Republicans bore "a great deal" of the blame, but 57%, including me, voted for "somewhat." I wrote: "When the Republicans took over Congress in 1995, they came in as reformers; by 2006, the Republicans had become participants in a culture of corruption (in both legal and illegal forms), and of abuse of the rights of the minority party. In 2007, the Democrats took power and promised reform, but they are acting just as corruptly and abusively (perhaps even more so). No wonder the public is cynical." Categories: Congress     28 Comments

Stephen Halbrook Christmas Special

David Kopel • December 17, 2009 6:34 pm

A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3–0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook's career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party "respondent in support of petitioner." Categories: Constitutional History, Criminal Law, Fourteenth Amendment, Guns, Supreme Court     10 Comments

Daring activists hang banners on the property of one of the world's most unethical corporations

David Kopel • December 16, 2009 5:11 pm Edit

Pictures and details here.      26 Comments

Political bloggers: We love Tom Coburn and Bernie Sanders

David Kopel • December 16, 2009 4:37 pm Edit

Last week's National Journal poll of political bloggers asked Left-leaning and Right-leaning bloggers about their favorite political figures. Herewith, the results:

Most-admired House member: On the Left, Alan Grayson. My father's former campaign treasurer, Denver Rep. Diana DeGette, tied for second. On the Right, tie between Jeff Flake, Mike Pence, and Paul Ryan. I voted for Flake.

Most-admired Senator: On the Left, Bernie Sanders. On the Right, Tom Coburn. I voted for Coburn.

Which current member of Congress has the brightest political future: On the Left, Alan Grayson. (A result I view as very wrong, if a bright political future includes winning re-election.) On the Right, a tie between Michelle Bachmann, Eric Cantor, and Jim DeMint. I voted for Bachmann, because I thought that she will continue to win re-election, might move up to the Senate, and continues to grow in national influence. Twelve months from now, she'll still be rising in political influence, while Grayson will be trying to get a job as an Air America host. This isn't a value judgment about Grayson/Bachmann, just a political prediction.

Most impressive Cabinet Secretary this year: On the Left, Hillary Clinton. On the Right, Robert Gates. I voted for Interior Secretary Salazar.

Which political figure has most impressed you this year: On the Left, Alan Grayson. On the Right, Sarah Palin. I voted for interim Honduran President Robert Micheletti, "for saving his nation from despotism and standing up to powerful foreign governments which backed the would-be despot."

Who is the best Democratic/Republican strategist: The Left picked David Plouffe. The Right picked Karl Rove, as did I. Not so great in 2006, but pretty insightful these days.

Who is the most creative Democratic/Republican thinker: The Left chose "None," followed by Howard Dean. The Right chose Newt Gingrich, as did I. Not a good manager, as shown by his tenure as Speaker of the House, but very creative and smart.

Which voice in the Democratic/Republican party would you like to mute: The Left wanted to silence Rahm Emanuel. On the Right, there was a tie between Gingrich, Michael Steele, and Lindsey Graham. I voted for "none," because "Diversity is a sign of strength, and debate is healthy." Categories: Congress, Politics     22 Comments

Bush v. Gore was rightly decided

David Kopel • December 11, 2009 7:28 pm Edit

Nelson Lund explains why in this new article, from the Florida Law Review. Lund is responding an article by Akhil Amar, which does not appear to be available on the public Internet.

Readers who want even more on the subject may enjoy Lund's 2002 article in the Winter 2002 issue of Constitutional Commentary, responding to a 2001 Harvard Law Review article from Larry Tribe. Tribe wrote a counter-article in Constitutional Commentary; Lund's reply to that is here. Tribe penned a further response.

And there is also Lund's 2002 article from the Cardozo Law Review.


  Categories: Fourteenth Amendment, Politics, Supreme Court     0 Comments

Obama and the Universal Golden Rule

David Kopel • December 11, 2009 1:56 am

Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama's Nobel Prize speech claim that "the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us." May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–"Thou shalt love they neighbor as thyself"–since Leviticus is Jewish scripture, and Rabbi Hillel's kind and wise sayings are not.) May then writes: "I don't think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah's eyes and not in the eyes of Allah's servants. Not unless and until they convert."

Let's look at the record. One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion's scripture or other teachings. However, if question is: "Does every major world religion contain the Golden Rule?" the answer is "yes." To wit:

Islam:  "Not one of you (truly) believes until he wishes for his brother what he wishes for himself." An-Nawawī's Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).

Mencius said, "Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence."  Lao Tzu said, "Regard your neighbor's gain as your own gain and your neighbor's loss as your own loss."  The Mahabharata teaches, "This is the sum of duty: Do naught unto others which would cause you pain if done to you."  The Buddha said, "What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?"  The Baha'i, Jainists, and Sikhs agree.

Confucianism: Mencius said, "Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence."  Mencius, Mencius, transl., D.C. Lau (N.Y.: Penguin, 1970), book 7, part A, item 4, p. 182. (And yes, I know that there's a lot of discussion about whether Confucianism and Taoism are actually religions, or just philosophies.)

Taoism: Lao Tzu said, "Regard your neighbor's gain as your own gain and your neighbor's loss as your own loss."  Lao Tzu, T'ai Shang Kan Ying P'ien (Treatise of the Exalted One on Response and Retribution), transl., Teitaro Suzuki & Paul Carus 213–218 (La Salle, Illinois: The Open Court Pub. Co., 1906).

Hinduism: The Mahabharata teaches, "This is the sum of duty: Do naught unto others which would cause you pain if done to you."  Mahabharata, 5:1517. Anusasana Parva, book 13.

Buddha: The Buddha said, "What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?"  Christopher W. Gowans, Philosophy of the Buddha (London: Routledge, 2003,), ch. 15.

Baha'i: : "Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it." Baha'u'lah, Gleanings, from the Writings of Baha'u'lah (U.S.: 1990), ch. 56, p. 128.

Jain: "One should treat all creatures in the world as one would like to be treated." Mahāvīra, Sutrakritanga 1.11.33.

Sikh: "I am a stranger to no one; and no one is a stranger to me. Indeed, I am a friend to all." Guru Granth Sahib, pg. 1299. See also Guru Angad, vol 2, 29.

Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama's Nobel Prize speech claim that "the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us." May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–"Thou shalt love they neighbor as thyself"–since Leviticus is Jewish scripture, and Rabbi Hillel's kind and wise sayings are not.) May then writes: "I don't think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah's eyes and not in the eyes of Allah's servants. Not unless and until they convert."

One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion's scripture or other teachings. However, if the question is: "Does every major world religion contain the Golden Rule?" the answer is "yes." To wit:

Islam:  "Not one of you (truly) believes until he wishes for his brother what he wishes for himself." An-Nawawī's Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).

Confucianism: Mencius said, "Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence."  Mencius, Mencius, transl. D.C. Lau (N.Y.: Penguin, 1970), book 7, part A, item 4, p. 182. (And yes, I know that there's a lot of discussion about whether Confucianism and Taoism are actually religions, or just philosophies.)

Taoism: Lao Tzu said, "Regard your neighbor's gain as your own gain and your neighbor's loss as your own loss."  Lao Tzu, T'ai Shang Kan Ying P'ien (Treatise of the Exalted One on Response and Retribution), transl. Teitaro Suzuki & Paul Carus (La Salle, Illinois: The Open Court Pub. Co., 1906).

Hinduism: "This is the sum of duty: Do naught unto others which would cause you pain if done to you."  Mahabharata, 5:1517.

Buddhism: Siddhartha said, "What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?"  Christopher W. Gowans, Philosophy of the Buddha (London: Routledge, 2003), ch. 15.

Baha'i: : "Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it." Baha'u'lah, Gleanings, from the Writings of Baha'u'lah (U.S.: 1990), ch. 56, p. 128.

Jainism: "One should treat all creatures in the world as one would like to be treated." Mahāvīra, Sutrakritanga 1.11.33.

Sikhism: "I am a stranger to no one; and no one is a stranger to me. Indeed, I am a friend to all." Guru Granth Sahib, pg. 1299.

Are the above sayings all "central" to their respective religions? Well in Islam, the Hadith (stories and sayings of Muhammad, based on tradition) are much less central than the Koran. In Confucianism, Mencius is perhaps the greatest of Confucian writers, but he's not Confucius. One could raise centrality questions about most of the quotes (other than the Sermon on the Mount, which is indisputably central). Does the Hadith's reference to "his brother" mean: 1. A sibling? 2. A co-religionist? 3. Everyone? At the least, the Hadith's text (like the text of references to a "brother" in other religions) is open enough so that kind-hearted people can legitimately interpret it as "everyone."

While President Obama's Nobel speech is Kennedyesque in the very best way, there is an important difference between the challenge that JFK faced and the one that BHO faces. Communism, like Nazism, was Evil incarnate. President Roosevelt was right to say so about Nazism, and President Reagan was right to say the same about Communism. The appropriate long-term goal for American policy was to eliminate these evils from the face of the earth. Such a goal is neither appropriate nor legitimate with regard to Islam. Accordingly, it was proper for the President Obama in Oslo to continue the Bush policy of appealing the best part of Islam, and of denying the claims of al Qaeda and similar evil-doers that they represent true Islam.

Although I didn't vote for Barack Obama, he is my President, and I wish him every success in carrying out the positive vision he articulated today; if he does, he will have more than fully earned the Nobel Peace Prize.

  Categories: Religion, War and Armed Conflict, War on Terror     57 Comments

Three cheers for President Obama!

David Kopel • December 10, 2009 4:24 pm

For his very good speech accepting the Nobel Prize. Our President affirmed the principle of "just war," and the righteousness of sometimes using unilateral force against tyranny, for "There will be times when nations–acting individually or in concert -- will find the use of force not only necessary but morally justified." In words reminiscent of John F. Kennedy or Ronald Reagan, President Obama continued:

I face the world as it is, and cannot stand idle in the face of threats to the American people.  For make no mistake:  Evil does exist in the world.  A non-violent movement could not have halted Hitler's armies.  Negotiations cannot convince al Qaeda's leaders to lay down their arms.  To say that force may sometimes be necessary is not a call to cynicism -- it is a recognition of history; the imperfections of man and the limits of reason.

I raise this point, I begin with this point because in many countries there is a deep ambivalence about military action today, no matter what the cause.  And at times, this is joined by a reflexive suspicion of America, the world's sole military superpower.

But the world must remember that it was not simply international institutions -- not just treaties and declarations -- that brought stability to a post-World War II world.  Whatever mistakes we have made, the plain fact is this:  The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.  The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.  We have borne this burden not because we seek to impose our will.  We have done so out of enlightened self-interest -- because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others' children and grandchildren can live in freedom and prosperity.


peace is not merely the absence of visible conflict.  Only a just peace based on the inherent rights and dignity of every individual can truly be lasting. It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War.  In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.


America has never fought a war against a democracy, and our closest friends are governments that protect the rights of their citizens.  No matter how callously defined, neither America's interests -- nor the world's -- are served by the denial of human aspirations.

So even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal. We will bear witness to the quiet dignity of reformers like Aung Sang Suu Kyi; to the bravery of Zimbabweans who cast their ballots in the face of beatings; to the hundreds of thousands who have marched silently through the streets of Iran.  It is telling that the leaders of these governments fear the aspirations of their own people more than the power of any other nation.  And it is the responsibility of all free people and free nations to make clear that these movements -- these movements of hope and history -- they have us on their side.

It is true that Obama administration has not always fully lived by these noble words. But at least today, the words themselves are what matters. The President's Nobel Prize Speech was no apology tour, no bow to a foreign monarch. Like his speech at West Point, the Nobel speech was a strong continuation of the bipartisan Kennedy-Reagan foreign policy based on military strength, support for human rights, readiness to negotiate, and realistic idealism. Today, our President made me especially proud to be an American.

p.s. Contrary to what one of Hugh Hewitt's co-bloggers wrote, the final section of the speech is not "where Obama re-coins the golden rule as ‘the law of love.'" For those who don't recognize the phrase, here's the background, from my article on modern pacifism in the Charleston Law Review:

In 1932, [the eminent Protestant theologian Richard] Niebuhr wrote that he could think of no good methods, short of war, to end Japanese aggression in China. But since he was a pacifist, force was out of the question. So he advocated "the grace of doing nothing." That is, just sitting on the sidelines while Japan raped, literally and figuratively, the Chinese people and hoping that God would solve things in the long run.


In a famous exchange of letters with his brother Richard, Reinhold Niebuhr [also an eminent Protestant theologian] argued that the deeper principle of the pacifist Gospels was "the law of love." He argued that the law of love required Christians to protect the victims of fascist aggression. His views were elaborated in his book Moral Man and Immoral Society. After World War II, Reinhold Niebuhr became one of the founders of Americans for Democratic Action, an organization of liberal Democrats such as Arthur Schlesinger, Jr., Hubert Humphrey, and John Kenneth Galbraith--who supported President Truman's leftist economic policies and staunch resistance to Stalin.

In short, Obama's use of Niebuhr's phrase "the law of love" fits perfectly with the central question that Obama addressed in his speech. Indeed, the "law of love" line comes along with a very Niebuhrian explication. The speech not only invoked President Kennedy twice, it was a speech that President Kennedy himself might have given (with, of course, some changes in details) if Kennedy had lived long enough to receive the Nobel Prize. Certainly there is a great deal in the Obama speech that matches what Ronald Reagan and George W. Bush believed and practiced. However, the amount of attention that the speech gave to development aid as a tool for peace is not a Reagan theme, although it was a theme for both Kennedy and Bush. The speech's exaltation of multilateral institutions like the U.N. was also a Kennedy theme, not a Reagan or Bush theme. So while the speech is definitely within the bipartisan Kennedy-Reagan mainstream, the speech is closer to a Kennedy speech than anything else. Accordingly, it was especially appropriate for our young President–who like Kennedy inspires many people around the globe–to use the words of Niebuhr that so profoundly influenced the great anti-communist liberal Democrats of the Age of Kennedy.

p.p.s. Much more on Niebuhr here, in chapter 3 of my Brown Univ. thesis on Arthur Schlesinger.

  Categories: War and Armed Conflict, War on Terror     112 Comments

New article on the right to arms in early Pennsylvania

David Kopel • December 1, 2009 4:16 pm Edit

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19  Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich's claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich's claims about constitutional language and history.

Part II investigates Kozuskanich's analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the  Quaker's protests against being forced to "bear arms" in the  militia demonstrate that "bear arms" is exclusively a military term; therefore the "right to keep and bear arms" is only about owning and carrying militia weapons.

But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich's citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists' arms.

Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.

  Categories: Constitutional History, Militia     8 Comments

McDonald v. Chicago oral argument scheduled

David Kopel • December 1, 2009 1:43 pm Edit

For March 2, at 10 a.m.

In other McDonald news, Declan McCullagh of CBS News has an article discussing some of the McDonald amicus briefs, including mine.

And in my continuing program of calling attention to interesting briefs in the McDonald case, here's a link to the brief of Safari Club International. It's a solid example of a particularly helpful type of amicus brief, in which a group shares its practical expertise with the Court, explaining how the Court's decision may impact a particular activity. As the SCI brief details, local gun bans such as Chicago's can significantly interfere with hunting. For example, nationwide, over a million people use handguns for hunting, yet Chicago residents are forbidden to own these hunting arms. The result is harmful not only to humans, but to wildlife; the brief explains the tremendous role that regulated hunting plays in wildlife conservation and management.

Categories: Guns     12 Comments

Honduras election results in decisive win for democracy

David Kopel • November 30, 2009 3:51 am Edit

In Sunday's presidential election, the voters of Honduras chose Partido Nacional candidate Pepe Lobo, who won 58%, compared to 33% for Partido Liberal candidate Elvin Santos. Both candidates supported the removal of former president Manuel Zelaya, who had violated Articles 373 and 374 of the Honduran Constitution and forfeited his office by attempting to arrange a second term for himself. Zelaya had called for a boycott of the election, and predicted that an abstention rate of over 50% would make the election illegitimate. As it turned out, 61% of enrolled voters cast ballots–an increase from the 2005 presidential election (which Zelaya won with 49.9%), and in which only 53% of enrolled voters had participated. In the 2001 election, participation was 64%; in 1997 it was 72%, and in 1993 it was 65%.

Although Zelaya had won on the Partido Liberal line, his attempt to entrench himself in office made him anathema to the vast majority of Partido Liberal legislators.

Update: Since some readers were apparently unclear about what I meant by "decisive win for democracy," I meant that a solid majority of Hondurans repudiated by Zelaya by going to the polls to vote overwhelmingly for two candidates who both repudiated Zelaya's efforts to destroy the Constitution. Which of the two of those candidates got the most votes was irrelevant to the fact that democracy itself triumphed.


Swiss vote to ban minarets

David Kopel • November 30, 2009 12:54 am Edit

Pre-election polls showed support for an initiative to ban the construction of new minarets in Switzerland at only about 35%. However, thanks in part to backing from feminists, the ban passed with 57.5% on Sunday, sweeping all but a few of Switzerland's 26 cantons. The website for the ban's supporters is here, along with a picture of a campaign poster (showing the Swiss flag punctured by missile-like minarets, along with a woman in a burka) that was banned in some cities because it was said to be discriminatory.

A legal challenge is likely under the European Convention on Human Rights. The most relevant provision is Article 9, which provides:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Proponents frequently cited the 1997 words of Turkey's  Prime Minister Recep Tayyip Erdogan: "Mosques are our barracks, domes our helmets, minarets our bayonets, believers our soldiers. This holy army guards my religion." A useful Wikipedia article is here. Switzerland's population is about 5–6% Muslim, mostly immigrants from southeastern Europe.

Update: A commenter asks for what the arguments were in favor of the ban. According to the website of the initiative's proponents, the argument was that minarets are intended as a symbol of Muslim superiority, particularly of superiority to any different religious/political system, and accordingly a vote against minarets is a vote against creeping shariaism. As the Wall Street Journal noted, the initiative is not a particularly effective tool for accomplishing its proponents' objectives, but perhaps the Swiss majority decided that it was the only tool available to send a message to the political establishment.

Back in 2003, after I visited Geneva, I wrote the following for my Rocky Mountain News media column: "Local investigative reporting appears weak. A Swiss television station recently exposed a secret deal between the Geneva police and the Iranian government: The Iranians would not commit terror in Switzerland, while the Geneva police would turn a blind eye to Iranian terror bases in Geneva. In the United States, such a revelation would set off a frenzy of newspapers advancing the story with further investigation about a gigantic local police scandal, but the Geneva papers did little with the story."

This is just one of many examples of the Swiss elite's feckless and amoral dealing with the Islamonazis of Tehran. Roger L. Simon has written extensively about the Islamist hate-fest at the UN's "Durban II" conference earlier this year in Geneva, where "I watched as the Swiss President welcomed the Holocaust-denying-nuclear-bomb-buliding-mega-misogynistic-homosexual-denying-and-now-demonstrator-murdering-religious-psychopath President of Iran Mahmoud Ahmadinejad."

The Swiss government has provoked a backlash from the Swiss people. The decent, pro-freedom Swiss Muslims from places like Albania, who see a minaret as symbolizing nothing more than a Muslim parallel to a church spire, are the innocent victims.


McDonald amicus briefs: Academics, Congress redux, and California District Attorneys

David Kopel • November 25, 2009 3:20 pm Edit

Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago's) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.

Today, let's take a look at the brief of Philosophy and Criminology professors. It's co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC's handgun been had been a failure, and probably counter-productive, in terms of public safety.

The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit's assertion in McDonald that self-defense is merely a "gloss" on the criminal law, and could be abolished by statute.

Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates' three decades of scholarship on firearms policy.

A long section titled "Research makes gun ban advocates recant" provides a history of the social science debate on gun control in the U.S. since the 1960s. Some of the most prominent scholars who have been critical of gun control started out as gun control advocates, but changed their mind because of the evidence. These include James Wright, Gary Kleck, Marvin Wolfgang, and Hans Toch (a member of the 1968–69 Eisenhower Commission which had promised that reducing handgun availability would reduce crime).

Finally, there are several pages responding to a recent study (by Branas et al. from Penn) claiming that guns are ineffective for protection in an urban environment because gun carriers are supposedly more likely to be shot than non-carriers.

Regarding another brief...Orin's Monday post, "Against Congressional Briefs,"  argues that, out of respect for separation of powers, Congresspeople should not file briefs in Supreme Court cases. However, it should be remembered that the Court does look to Congressional intent and action–not just in interpreting federal statutes, but also in momentous constitutional cases. For example, in Frontiero v. Richardson, 411 U.S. 677 (1973)(equal protection clause applies to sex discrimination), Justice Brennan's plurality opinion listed some recent actions that Congress had taken against sex discrimination (Civil Rights Act of 1964, Equal Pay Act of 1963, sending the Equal Rights Amendment to the states for ratification in 1972), and declared: "Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal brand of Government is not without significance to the question presently under consideration."

Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement. And, in the McDonald brief, to point out that some local infringements violate not only the Second Amendment, but also the Supremacy Clause, because they interfere with congressional exercise of its enumerated militia power.

Eugene has written a post about the brief which Chuck Michel filed on behalf of 34 California District Attorneys, and other law enforcement officials. In light of the speculation about the DAs and their motives, it seems useful to provide some background. In Heller, 29 elected California District Attorneys joined the brief that Chuck and I co-authored. That brief explicitly stated: "strict scrutiny is the appropriate standard of review for most gun controls." (p. 39).


Categories: Congress, Constitutional History, Fourteenth Amendment, Guns, Seventh Circuit     36 Comments

Health bill and gun ownership

David Kopel • November 24, 2009 12:16 pm

Today's Washington Examiner has an article about the concerns that Gun Owners of America has raised about the health care bill which is currently on the Senate floor. I am quoted therein, and I think that GOA has a good point. The Examiner article concludes with  a contrary quote:

"It is very clear they are misreading the bill," said Igor Volsky, a health care researcher for the Center for American Progress, a liberal think tank. "All this bill does is define what a wellness program is. It is a broad definition, but it is not broad enough to net gun ownership."

Let's look at the bill. The rules for a "Wellness Program" begin on page 87. In brief, if you participate in a Wellness Program, you can get a health insurance premium discount of up to 30%. Stated another way, if you don't participate in a Wellness Program, you will pay a substantial insurance rate penalty for not doing so.  The definition of a "Wellness Program" begins in paragraph (B) on page 88:

"(B) The wellness program shall be reasonably designed to promote health or prevent disease. A program complies with the preceding sentence if the program has a reasonable chance of improving the health of, or preventing disease in, participating individuals and it is not overly burdensome, is not a subterfuge for discriminating based on a health status factor, and is not highly suspect in the method chosen to promote health or prevent disease."

Pages 29–30 mention some of items that "Wellness and Prevention Programs" "may include." The phrasing does not appear to exclude other items. In any case, the item for "Healthy lifestyle support" is broad enough to include almost anything.

This definition is extremely broad, and the assertion that it is not broad enough to encompass gun ownership appears to be incorrect. There is a very large body of "public health" scholarship which claims to show that gun ownership is a very large health risk to the family that has a gun in the home. I believe that much of this scholarship is of poor quality, and some of it is mere junk science. However, the existence of dozens of articles in public health and medical journals would almost certainly be enough for an anti-gun definition of "Wellness Program" by the Dept. of Health and Human Services to pass the deferential Chevron standard of review.

A regulation which said that a Wellness Program may (or "shall") include a discount for not owning a gun (or not owning a handgun, or not owning a so-called "assault weapon", or for not owning more than a certain number of guns) might be argued to be "overly burdensome." But there's no guarantee that a reviewing court would consider a mere discount for people who don't own guns to be "overly" burdensome on gun owners.

Pages 29–30 of the Reid bill mention some of items that "Wellness and Prevention Programs" "may include." The phrasing does not appear to exclude other items. In any case, the item for "Healthy lifestyle support" is broad enough to include almost anything.

To be clear: Senator Reid has a strong record on Second Amendment issues. When he was Minority Leader, he provided essential leadership for passage of the Protection of Lawful Commerce in Arms Act. I am certain that there was no intent by Senator Reid to do anything in the health bill to harm Second Amendment rights.

However, the bill would in fact make it easy for a HHS Secretary to write "wellness" program regulations which penalize some or all gun owners. I think it is politically unlikely that HHS Secretary Sebelius would immediately write such regulations. But since the Reid bill is intended to make permanent changes in American health care, no-one can predict what a HHS Secretary might do in 10 or 30 years, when political calculations might be different.

Solving the problem would be easy. Since Senator Reid has no intention of harming Second Amendment rights (or, presumably, of harming anything else in the Bill of Rights), there would appear to be little reason not to explicitly say so in the bill. An amendment might say something like: "No wellness program, nor anything else in this bill or any regulation, policy, or practice thereunder, may create any discount or any other incentive that discourages the ownership, possession, use, or carrying of firearms, air guns, or ammunition, or of any type or quantity of firearms, air guns, or ammunition. This aforesaid prohibition shall be broadly construed, and in case any conflict with any other provision of this bill, the prohibition shall control. Further, the prohibition on incentives against the exercise of constitutional rights shall also protect the exercise of each and every right in Amendments I through VIII of the United States Constitution."

Undoubtedly a professional legislative drafter could write a better version of above. Explicit rights protection would prevent a future HHS Secretary from misusing the law in a way contrary to the intent of the sponsor, and contrary to what every advocate for the bill claims to want. At the same time, explicit rights protection would limit not one iota of what the bill's advocates say they want to accomplish. Accordingly, one might expect that a rights protection amendment with strong and broad language would earn unanimous support if it were offered on the Senate floor.

Categories: Congress, Guns, Health Care     46 Comments

McDonald amicus: Don't trust Fairman and Berger

David Kopel • November 23, 2009 11:39 pm

Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: "Charles Fairman's and Raoul Berger's Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court."

To make a long story short, during the latter half of the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.

Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I've ever read between two legal scholars. The brief's Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.

The brief's main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.

And for those VC readers who have been playing Aldridge's Bingham for the last seven hours, you better tap another keg.

Categories: Constitutional History, Fourteenth Amendment, Legal Scholarship, Supreme Court     26 Comments

Rules for Aldridge's Bingham

David Kopel • November 23, 2009 10:45 pm

One of the charming aspects of VC culture was that shortly after Orin invented a drinking game (see 4:38 p.m. post on Nov. 23) based on how often commenter J. Aldridge mentioned John Bingham, readers wanted clarification on the rules. In particular, the rules say that one must take "a drink" whenever J. Aldridge mentions Bingham; but what constitutes "a drink"?

Since it's Orin's game, he has the final say, but pending any dispositive pronouncement from him, let us consult precedent. "Aldridge's Bingham" is plainly a descendant of "Hi Bob," in which a person watches The Bob Newhart Show, and takes a drink whenever anyone says "Hi Bob." The Webtender handbook chapter on Drinking Games specifies that "a drink" in "Hi Bob" means that the person must take "a very generous drink of their beer."

The Webtender rulebook is useful but is not controlling precedent. First of all, the "Hi Bob" parallel rule that when the prompt occurs, everyone must say "Hi Bob!" is plainly inapplicable. All the more so since J. Aldridge's first name is unknown.

Further, "Hi Bob" is premised on a half-hour television show, in which the number of instances of characters saying "Hi Bob" will likely be less than three dozen. In contrast, "Aldridge's Bingham" contains no such upper limit, is already well over three dozen, and could eventually reach three digits.

Accordingly, the provisional rules for Aldridge's Bingham are as follows: 1 unit = a 12 oz. beer, or 4 oz. of wine, or one shot of distilled spirits. Upon reading the prompt (that is, Aldridge writing "Bingham") immediately consume 1/5 of one unit. In other words, a "drink" for purposes of Aldridge's Bingham is 1/5 of one alcohol unit.

A short FAQ:

Q. What about a comment in which Bingham is mentioned more than once? For example, Aldridge quotes a previous comment about Bingham, and then himself writes about Bingham?

A. In such a case, you would be required to have two drinks. Anything written by Aldridge, include a quotation from a previous comment, counts.

Q. What about another commenter who quotes Aldridge discussing Bingham?

A. No drink required. The game is "Aldridge's Bingham," not "Anyone's Bingham."

Q. What about that huge comment with a half-dozen Bingham quotes?

A. You must immediately consume the corresponding number of drinks.

Q. I already saw that big quote on a previous thread, and now I see it again. Do I have to have another half-dozen drinks?

A. Yes. Rules are rules. When you start reading a thread, you are responsible for the game-related consequences. The possibility of encountering the mega-quote is similar to a game of "Hi Bob," in which five characters might say "Hi Bob" all at once. This adds excitement and diversity to game play.

Q. I have been playing diligently. I read every thread today, and drank all that I was supposed to. Yet I barely feel tipsy.

A. Stephen Green, we are pleased that you are a reader of the VC.


Another reason to be happy you went to law school

David Kopel • November 23, 2009 8:50 pm

Louis Menand's new article The Ph.D. Problem: On the professionalization of faculty life, doctoral training, and the academy's self-renewal. Cliff Notes version: the academy (the tenured folks who run things) have every incentive to take in huge numbers of Ph.D. candidates, and turn them into ABD drones to teach undergraduates–even though about half of them will never finish the Ph.D. program, and half of those that do finish will never get a tenure-track job. The result is the over-production of Ph.D.‘s who are highly specialized but who are not very good at doing the things that universities should foster (e.g., teaching to non-specialists, intellectually engaging with the world outside the academy). The hyper-specialization puts non-tenured people (including Ph.D. candidates, and young teachers) at the mercy of the rigid political correctness of the tenured folks. Ten years of time invested in getting a Ph.D. in Comparative Literature leaves you with almost no job choices in your field, if you get blackballed for non-p.c. attitudes. 

"[T]he most important function of the system, both for purposes of its continued survival and for purposes of controlling the market for its products, is the production of the producers. The academic disciplines effectively monopolize (or attempt to monopolize) the production of knowledge in their fields, and they monopolize the production of knowledge producers as well." Menard applies the above statement to law as well as to humanities Ph.D. programs, but as he explicates, the problem is a lot worse in the Ph.D. context, because the credential takes so much longer to obtain.

Categories: Academia, Law schools     26 Comments

Kopel brief in McDonald v. Chicago

David Kopel • November 23, 2009 4:23 pm

Available on SSRN. (This is the abstract page. To read the full brief, click "Download," then on the new screen click the button for which city's server you will use for the download.) The brief is filed on behalf of the two major police training organizations in the United States: the International Law Enforcement Educators and Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). Additional law enforcement amici are the Southern States Police Benevolent Association, Texas Police Chiefs Association, and Law Enforcement Alliance of America. The brief is also joined by the Congress of Racial Equality, the Claremont Institute, the Independence Institute, and several scholars.

The brief presents new empirical research, conducted by Prof. Carl Moody of William & Mary, about the criminological results of changes in handgun ban policies. In 1965, South Carolina repealed its 1902 ban on handgun sales. We show that, relative to the rest of the United States, South Carolina suffered no statistically significant increase in crime rates. In 1983, Chicago's handgun ban went into effect. Chicago crime rates rose immediately and significantly. Post-ban Chicago is much more dangerous, relative to the 24 other largest U.S. cities, than it was before the ban. The differences are very large, and sustained, and the possibility that they are due only to random fluctuations in less than 1 in 100,000. During the 32 years studied, Chicago was the only top-25 city with a handgun ban during any part of the period.

Thanks to my hardworking intern Joshua Austin of Denver University Law School, the brief also presents data from 1996–2008 showing that Chicago's rate of police homicides is 79% greater than the U.S. average, and that Chicago's police homicide problem is the sixth-worst among large American cities.

The brief addresses various claims that were made by amici in the Seventh Circuit in support of the ban, including: that Chicago's population density is a unique reason to ban handguns in the home; that enforcement of the Second Amendment would prevent the use of NYC-style stop-and-frisk tactics of gangsters who are carrying illegal guns; or that NY state case law supports handgun prohibition.

Part V surveys eleven Supreme Court cases, from 1893–1921, which expressly vindicated the right of armed self-defense.

Finally, Part VI, which relies on input from the police trainers, explains why handguns are often the superior choice for home defense, especially in an urban setting. As the brief explains, there is no perfect gun for every situation, and the choice of any particular gun necessarily involves trade-offs. First Amendment cases, as well as Meyer v. Nebraska, teach us that aldermen and similar officials do not have the authority to micro-manage how individual families choose to exercise their constitutional rights. "A fortiori, the decision of parents, and other law-abiding individuals, to choose the best tool to defend their lives and their families is an inherent, fundamental, and natural liberty."

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  Categories: Constitutional History, Fourteenth Amendment, Guns     11 Comments

Institute for Justice brief in McDonald v. Chicago

David Kopel • November 23, 2009 3:56 pm

Counsel of record is Clark Neilly, who was Alan Gura's right-hand man in Heller. The most important part of the brief is Part III, which begins: "To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition." The brief then goes on to argue that the Court should resist suggestions that it hold that the Privileges or Immunities clause makes the first eight amendments applicable against the states, but does nothing else.

Thus, for example, many states adopted laws that kept blacks from practicing trades or even leaving their employer's land without permission;17 others adopted vagrancy laws that, in practice, made it illegal to be unemployed, and therefore illegal to look for work .... And the animating purpose of the Privileges or Immunities Clause, the elimination of constructive servitude, could not be achieved by enforcing only the narrow set of rights already enumerated in the existing Constitution. This last point is best illustrated by the sheer variety of laws invented by Southern governments to prevent freed slaves from enjoying the personal autonomy that was to have been theirs upon ratification of the Thirteenth Amendment. To take just one example, starting with Virginia in 1870, Southern states began to pass increasingly restrictive regulations of "emigrant agents"--people who attempted to recruit freedmen to leave their plantations by promising higher wages and better working conditions on understaffed Western plantations, eventually making it illegal or practically illegal for people to even offer these economic opportunities to poor workers. 23 Those and other laws had the express (though not always expressed) purpose of binding former slaves to the very same plantations they had worked during slavery, and upon essentially the same terms. That was anathema to the people who wrote and

Thus, for example, many states adopted laws that kept blacks from practicing trades or even leaving their employer's land without permission; others adopted vagrancy laws that, in practice, made it illegal to be unemployed, and therefore illegal to look for work


And the animating purpose of the Privileges or Immunities Clause, the elimination of constructive servitude, could not be achieved by enforcing only the narrow set of rights already enumerated in the existing Constitution. This last point is best illustrated by the sheer variety of laws invented by Southern governments to prevent freed slaves from enjoying the personal autonomy that was to have been theirs upon ratification of the Thirteenth Amendment. To take just one example, starting with Virginia in 1870, Southern states began to pass increasingly restrictive regulations of "emigrant agents"--people who attempted to recruit freedmen to leave their plantations by promising higher wages and better working conditions on understaffed Western plantations, eventually making it illegal or practically illegal for people to even offer these economic opportunities to poor workers. Those and other laws had the express (though not always expressed) purpose of binding former slaves to the very same plantations they had worked during slavery, and upon essentially the same terms.

In short, the protection of at least some economic rights (the right to choose where to work, the right to choose not to work, and the right to learn about work opportunities) was among the rights which the Privileges or Immunities clause was specifically intended to protect.

IJ does not ask the Court in McDonald v. Chicago, to take any affirmative steps to protect those rights. The IJ simply urges that the McDonald Court enforce the Second Amendment via the Privileges or Immunities clause, and not create any dicta prematurely restricting the scope of P/I.

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  Categories: Fourteenth Amendment, Guns, Supreme Court     46 Comments

Congressional brief in McDonald v. Chicago

David Kopel • November 23, 2009 3:26 pm

Available here. Joined by 58 Senators (including 19 Democrats) and 251 U.S. Representatives (including 78 Democrats, although my count here may not be exact). Counsel of Record is former Solicitor General Paul D. Clement.  Much of the brief recapitulates the lengthy historical record of congressional action (including but not limited to Reconstruction) to protect the individual right to arms from federal or state infringement.

The brief also points out the incorporation of the Second Amendment is a particularly easy case, in that: 1. Express congressional intent to do so via passage of the 14th Amendment is overwhelming and clear, and 2. Unlike the First Amendment (which begins "Congress shall..."), the Second Amendment does not restrict itself to one level of government, so incorporation should be obvious, given that the First Amendment has already been incorporated.

A third argument involves Congressional powers. First, state gun bans would interfere with Congressional war powers, since research shows that soldiers who have prior civilian familiarity with firearms can be trained faster and to a to a higher level of proficiency. (Sergeant York would be the most spectacular of the millions of examples to prove this point.)

Moreover, Article I already forbids states from disarming the citizens. This is because Article I, section 8, clauses 15–16, give Congress authority over the militia, including the authority to call the militia into federal service. Because of the Supremacy Clause, states may not disable citizens from performing their federal militia duties. Accordingly, the Court accurately explained in Presser v. Illinois, "the States cannot, even laying the [Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." Thus:

the constitutional design imparts some limits on a State's ability to restrict the right to keep and bear arms. And it always has.

The Militia Clauses narrow considerably the issue before the Court today. It is unquestionably the case that the right to keep and bear arms limits the States in some fashion. The only remaining question is to what degree. Incorporation against the States of the right to keep and bear arms as reflected in the Second Amendment would have the salutary effect of obviating the development of two different rights to keep and bear arms of different scope. The development of a unified Second Amendment jurisprudence is of particularly practical benefit in light of the relatively nascent state of the jurisprudence due to the confusion sown by United States v. Miller, 307 U.S. 174 (1939). Moreover, incorporation would properly treat the Militia Clauses, the Second Amendment, and the Fourteenth Amendment as a unified whole, codifying the fundamental right to keep and bear arms that the Founders believed pre-dated the Constitution.


The brief goes on to point out that the militia was activated for home defense at recently at World War II, that it could be of use in defense against Mumbai-style attacks, and in any case, the constitutional structure ensures that Congress must always have the choice to use the militia.

  Categories: Congress, Constitutional History, Fourteenth Amendment, Guns     6 Comments

Academics for the Second Amendment brief in McDonald

David Kopel • November 23, 2009 2:52 pm

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens' dissenting opinion in Heller.

Categories: Congress, Constitutional History, Fourteenth Amendment, Guns, Press     15 Comments

Cato brief in McDonald v. Chicago

David Kopel • November 23, 2009 2:02 am

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27–33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court's prior so-called "substantive due process" jurisprudence. The brief shows that long before the 14th Amendment, "due process" was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster's argument in the 1819 Dartmouth College case, was always solidly established in American understanding of "due process," and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF's Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.

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  Categories: Civil Rights, Constitutional History, Constitutional Theory, Fifth Amendment, Fourteenth Amendment     54 Comments

Poll on political bloggers and the media:

David Kopel • November 22, 2009 1:54 pm

This week's National Journal poll of political bloggers started off by asking them to rank the importance of various media that the political blogger himself uses to stay informed. On both the Right and the Left, "websites/blogs" came in first. However, on the Left, daily print newspapers were second, while on the Right, they were fifth. Print magazines were third on the Left, and last on the Right. For me, the web comes first, and print newspapers (Wall St. Journal, NY Times, Denver Post, and Boulder Daily Camera) are second.

The next question was to give a grade to White House Press Secretary Robert Gibbs. The Left gave him a B-, while the Right voted for D+. I gave him a B, and explained, "He's said some silly things, but some missteps are inevitable when one talks to the media that much. Overall, he comes across as a likable guy. The failed policies he has to defend aren't his fault."

The final question was "Do think it's a good idea for struggling newspapers to become nonprofits in order to receive tax breaks?" Sixty-nine percent of the Left, but only 16 percent of the Right liked the idea. I thought it was a fine idea, as long as a particular newspaper meets the legal standards to be a non-profit: "Why not? The country is better off with daily print newspapers than without them."

  Categories: Executive Branch, Internet, Media     15 Comments

President Obama is not a jihadi

David Kopel • November 21, 2009 5:03 pm

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question "PRESIDENT or JIHAD?" The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama's birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else's foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn't make the cut was my equating the allegation of "jihad?" with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

Categories: Freedom of Speech, Political Ignorance, Popular Culture, Terrorism, War on Terror     77 Comments

Missouri Court Upholds Statute Against Gun Possession While Intoxicated

David Kopel • November 20, 2009 6:09 pm

Missouri v. Richard was decided earlier this week by the Missouri Supreme Court, solely on the basis of the Missouri Constitution. Missouri law, Section 571.030.1(5) punishes someone who "Possesses or discharges a firearm or projectile weapon while intoxicated."

Richard did in fact possess a loaded handgun while intoxicated (eventually to the point of unconsciousness) by morphine and amitripyline. He threatened to kill himself with the handgun, and told his wife that if she called the police, he would make the police shoot him.

Richard argued that the statute was overbroad. The Missouri Supreme Court retorted that overbreadth can only be raised in a First Amendment context. (However, some other state courts have applied overbreadth to state constitution arms rights protections. See State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).)

In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to "actual or physical control." So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.

The Missouri law, by the way, has an explicit exception for self-defense, and there was no claim in the Richard case that the defendant's gun possession was for self-defense.

A concurring opinion by Judge Fischer says that the Second Amendment is incorporated via the Due Process clause, and that the Missouri statute does not violate the Second Amendment.

  Categories: Guns     21 Comments

NRA brief in McDonald v. Chicago

David Kopel • November 17, 2009 7:59 pm

Last night, Orin noted the filing of the Petitioner's brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikshank, and Presser.

In my view, it's a superb brief. It's worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief's short discussion of Due Process, attorney Alan Gura aptly writes: "A ‘law' depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.'" (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; "substantive due process" may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here's the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a "Respondent in Support of Petitioners." The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court's recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.

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  Categories: Constitutional Theory, Guns, Originalism, Supreme Court     30 Comments

Bleg on criminal prosecution of people for transient possession of illegal objects they want to give to the police

David Kopel • November 16, 2009 12:22 am

In a recent case in Surrey, England, a man found a black bag in his garden one evening. He looked into the bag, and found that it contained a shotgun. He took the shotgun into his home, and the next day he called the police, and brought the shotgun to the police station. He was arrested for unlicensed possession of a firearm, convicted after a jury trial, and now faces a mandatory sentence of at least five years in prison.

I am asking for commenters who can point to similar cases in the U.K., United States, or elsewhere. For example, a student finds a knife on a playground at school; she picks it up and takes it directly to a teacher. She is expelled for possession of a weapon on school property. I'm not looking only for cases involving weapons.

Also fair game for inclusion are other cases in which the person's possession of the weapon or other item was patently innocent and transitory. For example, a victim is attacked by someone with a gun. The victim snatches the gun away from the attacker. The victim is criminally prosecuted because he has a previous felony conviction, and therefore is not allowed to possess a gun.

For the cases you describe, please supply a cite, a link, or similar information. Thank you!

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  Categories: Criminal Law, Guns     68 Comments

Newsweek promotes Palin for President

David Kopel • November 14, 2009 5:41 pm

The cover of next week's Newsweek features a picture of Sarah Palin, along with the headline "How do you solve a problem like Sarah?" The cover is one more example of the periodical's positioning itself as the ideas journal for people who think that the New York Times' in-house editorials are middle-of-road, but have too many big words. And of the magazine's cultural disconnect from much of the United States.

To wit: "How do you solve a problem like Maria?" is an early song in The Sound of Music, which won the 1965 Academy Award for Best Picture. In the song, several nuns at an abbey in the Austrian mountains summarize the problems with the novice Maria (Julie Andrews): Maria is too physically active, athletic and outdoorsy. She is too expressive emotionally, particularly about her happiness. She is flighty, and late for everything except meals. She has a good heart, but does not listen well to advice from her elders, and she is highly self-directed: "How do you catch a cloud and pin it down?" The harsh nun, Berthe, calls Maria "a headache" and "a demon." Newsweek's subhead take's Berthe's role, calling Palin "bad news for the GOP–and everyone else too."

The Mother Superior knows better: Maria is no bad-news demon. Rather, Maria is someone who lives the Good News, and whose talents, energy, and will-power are going to waste in the abbey. So she ships Maria off to a job outside the abbey–a job for which Maria is totally unprepared, and a job at which Maria's predecessors have failed. After a rough start, Maria becomes a great success, due to her common sense, kind heart, wisdom, and readiness to defy convention. In the process, Maria also stands up to foreign totalitarian aggressors (winning the support of even her staunch critic Berthe), fortifies the nationalist sentiments of her country against those aggressors, and leads the people in her care to safety and freedom.

Ergo, the question "How do you solve a problem like Sarah?' provides its own answer, at least to people who know the film from which the song comes: Make her the President of the United States.

I'm not arguing for or against Palin for President–just observing that, as is so often the case, the Palin-hating media are less clever than they think, and end up inadvertently making her stronger.

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Categories: Media, Politics, Popular Culture     253 Comments

Blogger poll: Stupak amendment hurts Dems. Dems need to motivate base; Repubs need outreach to independents

David Kopel • November 13, 2009 12:41 pm

This week's National Journal poll of political bloggers asked "Would Democrats be helped or hurt politically if Congress enacts health care reform legislation containing abortion restrictions similar to those passed by the House?" On the Left, 79% said "hurt," while the Right was fairly closely split between "helped," "hurt," and "not much impact." I voted for "hurt," but thought it was a close call: "In pro-life districts, it's a tremendous boon to Dems who voted for the Stupak amendment, proving to voters that the local Dems are not controlled by the party's bicoastal pro-choice leaders. In pro-choice districts, however, Stupak's effects on abortion coverage in private insurance may make a lot of people very unhappy. On the whole, a net loss for Dems because Stupak is a huge win for the pro-life side, which is a bad long-term sign for a party which, at the national level, is officially pro-choice."

Question two was "In light of the off-year election results, what's the bigger political priority for the Democratic/Republican Party right now?" Eighty-six percent of the Left said that motivating the base should be the biggest Democratic priority. Sixty-seven percent of the Right said that the biggest Republican priority should be winning independents. I volunteered the Republicans need to do both: "As C.S. Lewis once remarked about the faith vs. works debate: ‘It does seem to me like asking which blade in a pair of scissors is most necessary.' Winning parties motivate their base and win independents -- as McDonnell and Christie both did."

Categories: Politics     22 Comments

Putting Heidegger in the library's grave of discarded lies

David Kopel • November 12, 2009 3:24 pm

Monday's New York Times has an interesting article about the forthcoming English edition of Emmanuel Faye's book Heidegger: The Introduction of Nazism into Philosophy in Light of the Unpublished Seminars of 1933–1935.  In brief, Faye argues that Heidegger's pro-Nazi views were not incidental, but were at the core of his life's work. Accordingly, suggests Faye, libraries should remove Heidegger books from the "Philosophy" section, and place them in the "History of Nazism" section. From what I know of Heidegger (he's discussed in my forthcoming book Aiming for Liberty) his intellectual influence on the 20th century was highly pernicious. Heidegger, like Hitler, wrote books addressing the question of what it means to be a "German," and came to similar conclusions. Both writers were verbose; Heidegger was superior in the fabrication of elaborate philosophical constructs, while inferior to his hero is writing comprehensibly. Given Heidegger's own dedication to Hitlerism, it seems that Heidegger himself might have considered it appropriate for his books to be shelved next to Mein Kampf.

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Categories: Anti-Semitism     178 Comments

Bloggingheads TV on Moses as the essential American hero

David Kopel • November 10, 2009 5:27 pm

Robert Wright's BloggingHeadsTV is often the best place on the Web for highly intelligent conversation about politics and culture. Particularly excellent is a new episode, posted today, in which Wright interviews Bruce Feiler, author of the new book America's Prophet, Moses and the American Story. Wright is a scholar of the history of religions, so the conversation is thoughtful, challenging, and enlightening. Wright finds himself astonished, by Feiler's thesis, but admits that upon reading the evidence, it is irrefutable. As the book's promotional material states:

The Exodus story is America's story. Moses is our real founding father. The pilgrims quoted his story. Franklin and Jefferson proposed he appear on the U.S. seal. Washington and Lincoln were called his incarnations. The Statue of Liberty and Superman were molded in his image. Martin Luther King, Jr., invoked him the night before he died. Ronald Reagan and Barack Obama cited him as inspiration. For four hundred years, one figure inspired more Americans than any other. His name is Moses.

I will say that Feiler's thesis is not at all startling to some of us who have studied religious rhetoric in American history. As when in 1858 Rabbi Isaac Mayer Wise, one of the founders of Reform Judaism in America, declared  that the American Independence Day was a second Passover: "the fourth of July tells us the glorious story of the second redemption of mankind from the hands of their oppressors, the second interposition of Providence in behalf of liberty, the second era of the redemption of mankind, the second triumph of right over might, justice over arbitrary despotism, personal and legal liberty over the power of the strongest and most warlike."

When Benjamin Franklin and Thomas Jefferson were chosen by the Continental Congress in 1776 to design a Seal of the United States, both proposed an image of the Exodus. Adams described the picture: "Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity. Motto, Rebellion to Tyrants is Obedience to God."

Second Amendment advocates had no trouble seeing the connection between the iconic images of Moses parting the Red Sea (in the film The Ten Commandments) with an upraised staff, and NRA President Charlton Heston proclaiming liberty throughout the land while holding high the Kentucky Rifle. Regardless of whether a viewer is inspired or annoyed by the juxtaposition, it's another example of how, even in the 21st century, the story of Moses and the Exodus continues to play an important role in American public life.

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Categories: Guns, Israel, Religion     31 Comments

Retrospective on the Iranian Hostage Crisis

David Kopel • November 10, 2009 12:56 pm

Last week, I was interviewed by Radio Free Europe's Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here's a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter's weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world's largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeini revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone.

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Categories: Russia, Terrorism, War on Terror     29 Comments

Bloggers: 10% unemployment would be disaster for Dems in 2010. Split on whether Cap/Trade will pass

David Kopel • November 9, 2009 3:36 pm

In last week's National Journal of political bloggers, one question asked: "If unemployment remains at roughly the current level, what impact will that have on the 2010 midterm elections?" One hundred percent of the Right, and 89 percent of the Left bloggers thought it would hurt Democrats, and most thought it would hurt them a lot. I agreed: "It's easy to imagine the Republican campaign ads which show the Democratic charts predicting how bad unemployment would get without the stimulus -- juxtaposed with how much worse unemployment actually got after the Democrats' deficit spending spree was adopted."

For the other question, both Left and Right reversed their positions from last June. Sixty-five percent of the Left now think it is "somewhat likely" that Congress will pass Cap & Trade. Sixty-five percent of the Right now thinks passage is "very" or "somewhat" unlikely. So both Left and Right have become more optimistic in the past few years. Objective proof that "hope" is on the rise.

I was in the minority of the Right who thought C/T somewhat likely: "The bill will see lots of ‘no' votes from Blue Dogs and from other Democrats who represent energy-producing states. But there may be enough support from urban/suburban Republicans for something to pass." Certainly a C/T bill that included lots of the ideas which John McCain has proposed, and which greatly cut back on the rent-sales that appear in the House-passed bill, the bill would be nearly unstoppable.

Categories: Congress, Energy, Environment, Politics     16 Comments

How my father helped free Soviet prisoners

David Kopel • November 8, 2009 7:53 pm

Last month in Massachusetts, my father, Jerry Kopel, received the Soviet Jewry Freedom Award from the Russian Jewish Community Foundation. He was honored along with his fellow former legislator, Tilman Bishop. (Bishop is now an elected Regent of the University of Colorado. He is a conservative Republican from Grand Junction; my father is a liberal Denver Democrat.) In 1979, my father and Bishop created the Committee to Free the Leningrad Three; these were Jewish and Christian refuseniks who had attempted to flee the Soviet Union in 1970. They were part of a group of 10 which bought all the seats on a small charter plane, and planned to overpower the pilot and escape to Scandinavia. Their plot was thwarted at the airport, before they ever boarded the plane. The group was known as the "samoletchiks"–airplane guys. By 1980, 7 of the 10 had been released due to international pressure. Five of them were part of a swap involving some captured Soviet spies; the other two had completed their prison terms. 

Thanks to the Committee to Free the Leningrad Three, the remaining three were all released by 1985.

In a recent column, my father explained some of the Committee's unusual tactics. First, they did not adopt the standard legislative approach of merely getting a resolution adopted. A resolution is a one-time thing, but the Committee aimed for continuing pressure. Colorado legislators were invited to join the Committee, which eventually comprised 95 of Colorado's 100 state representatives and senators. Every member was required to write personal letters, not form letters, to the Soviet authorities, and to the prisoners. Bishop (who started in the House, and then went on to a long tenure in the Senate)  made sure the Committee members kept up the writing.

More information about the samoletchiks and the campaign to free them can be found in recent articles in the Boston Globe  and in the Intermountain Jewish News.

State and local officials who want to support international human rights often have a difficult time finding ways to act effectively without running into conflicts with the federal government's primary role in foreign relations. The Committee to Free the Leningrad Three provides a good model for constructive local action with global consequences. Today, there are many prisoners of conscience around the world who could be saved by state and local American government activism.

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Categories: Communism, Russia     5 Comments

The most important right to arms vote of 2009

David Kopel • November 4, 2009 2:57 pm

UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.

Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member's bill  (by Candice  Hoeppner of Portage--Lisgar, Manitoba) to repeal Canada's failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser's journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here.

Categories: Canada, Registration     142 Comments

Another good night for the Second Amendment

David Kopel • November 4, 2009 12:47 am

NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) "gun show loophole." In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like  former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing ("one-handgun-a-month"), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.

Categories: Guns, Politics     55 Comments

Will the Arms Trade Treaty provide effective embargos on human rights violators?

David Kopel • November 2, 2009 12:41 pm

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society's former gun control executive, Rebecca Peters) and the IANSA spin-off  "Control Arms." Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law ReviewThe Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe's principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa's own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, imposed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN "peacekeepers" in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a "right" of governments to acquire arms. This "right" could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.

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Categories: Guns, International Human Rights Law, International Law     9 Comments

Left/Right bloggers agree: Economy will be top issue in 2010. Disagree on WH war on Fox

David Kopel • October 30, 2009 12:27 pm

This week's National Journal poll of political bloggers asked "What will be the top two issues in the midterm elections?" Enormous majorities on both the Left and the Right picked "Economy/jobs" as the expected top issue. On the Left, "health care reform" came in second, far ahead of the third-place "deficit/big government." The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that "deficit/government" was the choice for 2d place, with health care in third.

I wrote: "All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides."

The second question was "On balance, does the White House's decision to take on Fox News help or hurt President Obama?" Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: "It turns out that all those folks with ‘dissent is patriotic' bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama's stature is diminished in the short run, but Fox's reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories."

Categories: Climate Change, Executive Branch, Politics, Press     56 Comments

Fat acceptance in NJ Governor Race

David Kopel • October 29, 2009 3:10 pm

The Fat Acceptance Movement may have a new hero. Tubby Republican nominee Chris Christie is now pushing back against imperially thin Democratic Governor Jon Corzine's campaign theme making fun of Christie's heft. Christie criticizes Corzine for his recent, implausible, assertions that Corzine never raised the weight issue: "If you're going to do it, at least man up and say I'm fat...Afterwards he wusses out and says ‘no, no, no. I didn't mean that I don't know what you're talking about.' Man up. If you say I'm fat, I'm fat. Let's go. Let's talk about it." Asked if a governor needs to set a good example, Christie retorts, "I am setting an example...We have to spur our economy. Dunkin Donuts, International House of Pancakes, those people need to work too."

Smart move by Christie, since his sense of humor about himself softens his prosecutorial image (which independent candidate Chris Daggett has exploited in TV commercials) as an angry guy whose solution to everything is putting somebody in prison. For the still-undecided voters (a group which tends to be ill-informed about politics), Christie's quips show him as a guy who knows who he is, and who does not take himself overly seriously, who admits his own weaknesses, and who has a sense of humor.

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Categories: Politics, Popular Culture     35 Comments Share/Bookmark

Bloggers agree: Congress ethics weak; public option likely. Disagree on nukes in cap/trade, and on 2d stimulus

David Kopel • October 28, 2009 8:03 pm

Last week's National Journal poll of political bloggers asked Left/Right bloggers "Are [Democratic/Republican] leaders doing enough to police congressional ethics enforcement in their ranks?"  On the Left, 56% said the Democrats were not doing enough, and 60% of the Right said Republicans were not doing enough. I was among the "no" votes for Republicans, writing that "They have fewer opportunities for corruption now that they're the minority, but I don't see any evidence of a fundamental change in self-policing."

Question 2 asked "Could you see yourself supporting a cap-and-trade bill if it included significant incentives for nuclear energy?" On the Left, 61% said yes. On the Right, I was the only one who said yes. I reasoned, "The last 10 years of real-world climate data have shown that the professional hysterics and their predictions are wrong. However, the last 10 years have also demonstrated the growing dangers of U.S. energy dependence on dictatorships like Venezuela and Saudi Arabia. So it's possible (but unlikely) that a C&T bill with a strong nuclear energy component might significantly reduce U.S. dependence on dictators' oil, and therefore be worth supporting for national security reasons." I do realize the nukes in themselves are not the answer to foreign oil dependence, since only a small percentage of our electricity comes from imported oil. But it's still possible (albeit very unlikely) that a C&T bill could do a great deal to reduce American dependence on dictator oil.

The October 9 poll (which I didn't post about at the time) asked, "If major health care legislation clears Congress this year, will it include a public option?" Seventy-two percent of the Left and 57% of the right said it would. I was in the majority: ""If one presumes that the bill will pass, near-unanimous support will be needed from the Dems' left wing. They will figure out some new euphemism for the government-run program, to attempt to provide plausible deniability for moderate Dems."

The other question "If unemployment continues to rise, should Congress pass another stimulus package?" Eighty-nine percent of the Left thought so, while 93% of the Right disagreed, including me: "The ‘stimulus' is like a guy who is nearly broke from credit card debt deciding to cheer himself up by getting a new credit card and running up even more debt."

Categories: Climate Change, Congress, Economy, Energy     16 Comments

Pretend "Gun-Free" School Zones: A Deadly Legal Fiction

David Kopel • October 28, 2009 12:36 pm

That's the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus. 

Categories: Academia, Guns


Can Obama accept the Nobel Prize without congressional consent?

David Kopel • October 28, 2009 2:46 am

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say "no," and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt's Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, sect. 9, clause 8, of the Constitution states that "no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC sect. 7342 (titled "Receipt and disposition of foreign gifts and decorations") sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an "employee," which includes "the President and the Vice President."

A "foreign government" includes " any agent or representative of any such [foreign] unit or such organization, while acting as such." Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A "gift"  is "a tangible or intangible present (other than a decoration) ." A "decoration" includes a " medal, badge, insignia, emblem, or award."

By the statute, Congress explicitly consents to employee receipt of gifts of  "minimal value," which is "means a retail value in the United States at the time of acceptance of $100 or less." The statute authorizes the Administrator of General Services to make regulations to adjust "minimal value" to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the "minimal value" exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally "consents" to an employee receiving and keeping "a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee." The diploma and the medal both fit within the definition of "decoration." As President, Obama is the head of his own "employing agency," and therefore can approve his receipt of the medal and the diploma.

The check is not a "decoration" and is of much more than "minimal value." Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted "when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States." It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, "Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use." Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

 UPDATE: One disadvantage of VC's new platform is that we can no longer award the coveted Green Border to especially good comments. Such honor is due to the commenter who brought up 5 C.F.R. sec. 2635.204(d). This is part of a regulation covering all gifts received by federal employees–not just gifts covered by the Constitution's requirement of Congressional approval of gifts from foreign princes. The relevant portion of the regulation states that a federal employee can keep money from an achievement prize he is awarded, if the award is given regularly according to written standards. An example in the regulation is "an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH."

I don't think this regulation helps Obama, although, as I explained above, the statute provides him with all he needs. First, keeping the prize money is allowed only if the prize is awarded "by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee's official duties or by an association or other organization the majority of whose members do not have such interests." As has been widely discussed on the Internet, the Norwegian committee is obviously trying to influence U.S. foreign policy in a particular direction, and is making the award in part to further those interests. Second, the Nobel Prize for Medicine is awarded by an institute affiliated with a Swedish university hospital.  This is very different from the Peace Prize committee, which is picked by the Norwegian Parliament. Alternatively, if the Institute counts as a Swedish government agent because the Swedish government owns the hospital (I don't know if they do), then the example in the regulation is wrong. A regulation cannot over-ride a statute or the Constitution. The Constitution requires congressional permission; the statute provides congressional permission in certain circumstances. The executive branch, by writing a regulation for itself, cannot expand the scope of the congressional permission.

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Categories: Executive Branch

Legal Scholarship in the Internet Age

David Kopel • October 27, 2009 2:34 pm

That was the subject of a recent symposium at Denver University's law school. The DU Law Review's online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: "Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals." I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter's VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called "law French," which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU's joint faculty-student blog on corporate governance.

If you're interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson's book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book's ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

Categories: Academia, Internet, Law schools, Legal professor

Help me pick a constitutional law textbook

David Kopel • October 25, 2009 2:45 pm

This spring I will be adjunct teaching at Denver University, Sturm College of Law. The course is "Advanced Topics in Constitutional Law: Fourteenth and Second Amendments." The course will be mainly 14th Amendment, plus some Second Amendment (which is happens to be a good topic with which to study 14th Amendment original intent/meaning and incorporation), plus shorter treatment of the rights in Article I, sections 9–10; Article IV Privileges & Immunities, 9th Amendment, and 13th Amendment. The course is for second and third year students, who have already had a 1st-year constitutional law class, which was mostly about constitutional structure (commerce clause, separation of powers, etc.). One textbook will be Gun Control & Gun Rights, which I co-authored for NYU Press in 1999. For the main casebook, I am undecided, but leaning strongly towards Randy Barnett's. Please supply comments about Con Law textbooks which you have used, and their various virtues and flaws. Of course I am especially interested in the pro/con user experience for the Barnett book.

Aiming for Liberty: The Past, Present and Future of Freedom and Self-Defense

David Kopel • October 20, 2009 6:00 pm

That's the title of my new book, scheduled for publication December 4. It's now available for pre-order on Amazon.com and Barnes & Noble. In an 11-minute podcast on iVoices.org, Jon Caldara and I discuss the book. It's a collection of essays on firearms law and policy, and many other liberty issues and heroes. Topics are as old as ancient Israel and Rome, and as new as the United Nations gun control efforts and post-post-modernism.

Huge win for Knife Rights

David Kopel • October 20, 2009 5:34 pm

An e-mail from KnifeRights.com reports that the "Senate has passed the conference report for the fiscal year 2010 Homeland Security Appropriations Bill with our amendment to the Federal Switchblade Act intact." The bill now goes to President Obama for his expected signature. The bill makes technical changes in the definitions of the Federal Switchblade Act. In particular, under the revised statute, a "switchblade" is not: "a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife."

Earlier this year, the Customs Bureau had proposed revising several of its previous rulings; the effect would have been to bring a very large percentage of folding knives under the Switchblade Act. Knife Rights–with strong assistance from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) and from the National Rifle Association–led a public mobilization which garnered widespread, bi-partisan congressional support. At first, the citizen activism resulted in Customs halting its proposed regulatory change. Because the Switchblade Act's original language is very broad, Knife Rights then worked for a permanent resolution to the problem, by clarifying the statute.

A citizen group with a shoestring budget, Knife Rights was founded in 2006. Today's action is an impressive accomplishment for such a new organization.

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Categories: Congress, Non-firearms Arms


Blogger polls: political benefits of health care bills and Nobel prize, alienation of independents?

David Kopel • October 17, 2009 10:31 am Edit

This week´s National Journal poll of leading political bloggers had three questions. In the first, Left bloggers were asked "on health care reform, what outcome would most benefit Democrats in the 2010 midterms?" Right bloggers were asked the same question about Republicans. Nobody picked the Baucus bill as likely to lead to the best political outcome for one party or the other. The vast majority on the Left said that something like the House Committee bills would most benefit Democrats. A slender majority on the Right said that the passing nothing would most benefit Republicans.  I disagreed, and wrote, "The worse the better, from a purely political viewpoint; so passage of something like HR 3200 would be best for Republicans in 2010. But for the physical and fiscal health of the American people, the alternative approaches proposed by Cato and the Independence Institute would be far better."

The second question asked Left bloggers how worried they are that Democrats are alienating independents. Right bloggers were asked the same question about Republicans. The Left was more worried about this than the Right. This made sense to me, as I wrote ""The national Democrats are alienating independents so fast that the Republicans can't keep up."

The final question asked "On balance, does winning the Nobel Peace Prize help or hurt President Obama's image at home?" Almost all the Left thought it helped, and most all the Right thought it hurt. I agreed with the latter: "Even the strong Obama supporters who I've talked to think the prize was ridiculous. For swing voters, it highlights Obama's rhetoric/achievement gap. The principle that good intentions and sincere effort are good enough for a Nobel prize suggests that Sarah Palin's autobiography should win her the Nobel Prize in Literature."


Was Heller comparable to Roe v. Wade?

David Kopel • October 15, 2009 10:28 pm

So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson's comparisons to Roe are accurate, and that Heller is no more of an "activist" decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virginia Journal of Law and Politics, is now available on SSRN.

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Categories: Guns, Supreme Court


Too fat to be Governor?

David Kopel • October 13, 2009 1:40 pm

The seven deadly sins are lust, gluttony, greed, sloth, wrath, envy, and pride. Numbers one and three have felled many politicians in recent memory. But in the New Jersey governor's race, #2 appears to be affecting the race. A recent ad by incumbent Democratic Governor Jon Corzine accuses Republican challenger Chris Christie of "throwing his weight around" by using his position as U.S. Attorney to escape punishment for dangerous driving. The ad's wording, along with the photos of Christie, is an obvious double-entendre about Christie's heft. The political website 538 surveys all current Governors for their fatness, with accompanying pictures. A new poll from Public Policy Polling find that 4% of New Jersey voters are more likely to vote for Christie because of his weight, while 19% are less likely. Notably, among that 19%, the majority are not current Corzine supporters.

So what do you think? Is it legitimate to consider a candidate's enormous weight? Only if the weight is a result of sin #2, rather than of some medical condition? Is it more important, less important, or equally important as any of the other deadly sins? Is Jon Corzine the right guy to be raising questions about dangerous driving?

New Jersey, by the way, has the 8th-lowest state obesity rate in the U.S., according to CalorieLab. In the Colorado, which has the lowest national rate, in four decades that I have been following Colorado politics, I cannot remember any candidate as heavy as Christie winning any statewide office. Maybe somebody can point out a Board of Regents election in 1970, but in Colorado, Christie's size would definitely be a political disadvantage. Although, personally, I think that Christie's much bigger disadvantage is that he has run an extremely vague campaign, hoping to win mainly on the strength of not being Jon Corzine. As the PPP poll shows, being "not Corzine" is a definite advantage in New Jersey, but perhaps not sufficient in itself.


First Circuit upholds federal ban on juvenile handgun possession

David Kopel • October 6, 2009 2:02 pm

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one's own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you'll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach.

Categories: Commerce Clause, Constitutional History, Criminal Law, Guns


Want to do it the easy way, or the hard way?

David Kopel • October 5, 2009 7:45 pm Edit

In a new podcast from iVoices.org, I explain McDonald v. Chicago to Independence Institute President Jon Caldara. This is an 11 minute audio, which presumes that the listener is entirely new to the whole idea of incorporation. If you've got much more time on your hands, here's an 86 minute video of my presentation on essentially the same subject in early September to the Triple Nine Society. That presentation too presumes no prior knowledge of the subject, but it spends a long time taking setting out the background, from Barron v. Baltimore, to Reconstruction, to substantive due process, to the present. Sophisticated watchers will note that I mistakenly said "Privileges and Immunities" sometimes when I should have said "Privileges or Immunities." And I usually referred to the impending Supreme Court case as NRA v. Chicago, expecting that that Court would grant cert. in both NRA v. Chicago and McDonald v. Chicago, and the that popular name for the consolidated cases would probably be the former. I was wrong, as the Court granted cert. in McDonald only, and has made no decision in NRA, perhaps keeping that case in reserve in case some unexpected problem developed with McDonald. The very beginning of the video is cut, so it opens a minute or two into the presentation.

Categories: Guns, Supreme Court


Bipartisan blogger consensus: Our side's Congress Leadership is Mediocre. Big split on Afghanistan

David Kopel • October 2, 2009 9:00 am Edit

In this week's National Journal poll, the political bloggers were asked to grade the Congressional leadership. Left-leaning bloggers were asked to grade the Democrats, and Right-leaners were asked the grade the Republicans. The Left gave the Democrats a C. The Right gave the Republicans a C+. I gave the Republicans a B, and wrote "Doing a solid job opposing Obama's out-of-control deficit spending and his attempts to impose federal control on matters that are constitutionally the decisions of individuals or the states. If the Republicans had been similarly firm with Bush's over-spending and over-federalization, there might be many more of them in Congress today."

Question two asked, "On balance, would sending more troops to Afghanistan be a political plus or minus for President Obama?" Sixty-five percent of the Right, but only 15 percent of the Left thought it would be a political plus. I voted "plus," and wrote "In the long term, for both the president's political standing and for America's security, victory in Afghanistan is a large plus, and defeat is a disastrous minus."



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