April-June 2010 Archive, Kopel's Corner weblog

Federalist 46

David Kopel• June 30, 2010 5:19 pm

"The Influence of the State and Federal Governments Compared," from the New York Packet, by James Madison. My essay thereon is here, at Constituting America's series on The Federalist.

Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.

Written testimony on Kagan nomination

David Kopel• June 30, 2010 3:19 am

Available here. Co-authored with Stephen Halbrook. The oral testimony will be late July 1 or early July 2.

Categories: Guns     34 Comments

The Sotomayor switcheroo, and the Kagan nomination

David Kopel• June 29, 2010 7:21 pm

Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times.

On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will be posted by Wednesday morning, on my website.

Justice Sotomayor's disappointing performance highlights the importance for Senators who care about Second Amendment rights learning more about Ms. Kagan's actual views, and not settling for vapid platitudes about "settled law."

Categories: Guns, Kagan Nomination, Supreme Court     112 Comments

Podcast on the McDonald decision

David Kopel• June 28, 2010 6:54 pm

Sixteen minutes, taped this afternoon, for iVoices.org. MP3 here.

I also discussed the decision on Denver's Caplis & Silverman radio show. Dennis Henigan, from the Brady Center, was the guest after me. The show's archive link is here. Ignore the archive's caption, which incorrectly states, "Do you agree with the Court? David Koppel opposes the decision, Dennis Henigan supports."

Categories: Guns, Supreme Court     3 Comments

The dangers of knife bans

David Kopel• June 24, 2010 2:15 pm

Transocean's ban on employee knife possession nearly killed several BP drilling rig survivors, by preventing them from cutting the rope that attached the life boat to the drilling rig. Details here, from Towmasters. Some additional details here from the 1:30 p.m. report by the New Orleans Times-Picayune: the life boat was supposed to have a knife in it, but it couldn't be found in the dark during the chaos. Fortunately, a rescue boat drove up the raft and supplied a knife. For men at sea, and for lots of other laborers, a knife is a basic safety tool. The knife ban is one more piece of evidence that Transocean and BP chose not to follow best practices for safety.

Categories: Uncategorized     119 Comments

Family Research Council update

David Kopel • June 24, 2010 12:09 pm

Perhaps partly in response to my VC post yesterday, the Family Research Council has corrected its prior claim that the conservative pro-gay group GOProud supported national handgun carry reciprocity as a means of advancing interstate recognition of gay marriages. As the FRC now correctly explains, the marriage argument was offered by Missouri Democratic Senator Claire McCaskill, in explaining her vote against the handgun reciprocity proposal.

The FRC also states that it supports the Second Amendment, and points out that it joined an amicus brief in McDonald v. Chicago.

Categories: Gay Marriage, Guns     13 Comments

Does Kindle change everything?

David Kopel• June 24, 2010 1:17 am

I prefer reading books on paper ("pagebooks" in 23d century parlance). So I initially thought that Kindle (and similar products from other companies) was an interesting novelty, but not greatly important. However, some ancillary aspects of Kindle are making me reconsider. To wit:

1. Text to speech. Only a very small percentage of books are so popular that it makes economic sense to create a special audio edition. Kindle's text-to-speech feature makes every book into an audio book, unless the publisher refuses to grant the rights. As a result, the number of available audio books is vastly increased. The Kindle reader is not excellent, but it's pretty good. The "reader" has little sense of English, and often puts the accent on the wrong syllable. But the listening experience is no worse than listening to a very clear speaker whose native language is not English, and who therefore incorrectly accents "Wisconsin." Kindle is incompetent at numerals of three digits of greater. "1990s" will be read as "eye-gee-gee-oss" or "nineteen-goes" or some other bizarre variant. But overall, Kindle creates a reasonably functional audiobook out of every pagebook, with no marginal production cost. Pretty nifty for those of us who might want to listen to a policy book that sold 3,000 copies in 1996.

2. Text resizing. Not a big deal for me now, but gigantically significant for older people like my dad, whose eyesight is not as sharp as it used to be. With Kindle, every book is instantly a large-type edition. As with audio, a special feature that once was available only for big sellers is now available for everything.

3. Newspapers! Daily subscriptions to the Irish Times, the Daily Telegraph, Spain's ABC, and other great newspapers for a small fraction of what a print subscription would cost. And, for my dad, a large-print (via text resizing) version of the Denver Post and NY Times. I realize that all this is available for free on the web, but it's nice to be able to read a newspaper while sitting in the garden, instead of sitting in the home office at the computer monitor.

4. Instant delivery. Back in the days when I wrote a bi-weekly column for the Rocky Mountain News, there were plenty of times when I was writing a column Tuesday night which was due Wednesday afternoon, and I discovered that the column would be improved by examining a book to verify a particular fact. Sometimes I was able to get what I needed via Amazon's preview feature. But even better would have been instant delivery of the book itself. Only a tiny percentage of readers have an important need to have a book now, as opposed to 12 or 72 hours from now. For those readers who do need instant delivery, Kindle is fantastic.

As Wonder Woman might have said, the Amazonians are building the bridge to the future.

Categories: Uncategorized     72 Comments

Thinking about the 2d Amendment standard of review and McDonald

David Kopel• June 22, 2010 6:26 pm

That's the topic I discuss in a new Cato Institute Daily Podcast. (9 1/2 minutes). I also discussed related topics with Cam Edwards on NRA News (June 21 show, last segment of the show, 22 minutes).

Categories: Guns     18 Comments

Family Research Council vs. the Second Amendment

David Kopel• June 23, 2010 5:03 pm

A new piece from the Family Research Council blasts Grover Norquist (President of Americans for Tax Reform; Member of the Board of Directors of the National Rifle Association) for joining the board of GOProud, an organization of conservative gay Republicans. Among the alleged sins on the GOProud agenda :

Equalize "concealed carry reciprocity" amendment with gay rights via state rights. Support guns being carried and recognized across state lines, in order to further the agenda that gay marriages legal in only a few states be recognized legally in all. (July 2009)

To FRC's credit, they link to the endorsement article written by GOProud chairman Christopher Barron. The article says nothing about using national handgun carry license reciprocity as a tool to force states to recognize gay marriage licenses issued in other states. To the contrary, Barron's article makes the obvious point that national handgun carry will helps gays protect themselves from violent crimes, including gay-bashing.

The FRC article would have been better if it had not made an unsupported claim about Barron's supposed motive. Rather, the FRC could have more plausibly made the slippery slope argument that, regardless of supporters'  intent, national carry reciprocity might set a precedent for mandatory federal recognition of marriage licenses. I don't see a strong slippery slope possibility here, but the FRC is free to have its own risk assessment.

And obviously the FRC is free to organize is policy preferences any way it wants. Personally, though, I think that federal legislation which directly protects the Second Amendment rights of all Americans is far more important than whatever tiny effect the bill might have on gay marriage.   (HT: Snowflakes.)

Categories: Gay Marriage, Guns     50 Comments

Dale Peterson Returns, Even Worse

David Kopel• June 17, 2010 9:24 pm

Alabama Agriculture Commissioner candidate Dale Peterson, who finished third in the primary, is back with a new ad endorsing one of the two candidates in the run-off. Were I an Alabama Republican, the ad would not make me more inclined to vote for John McMillan, whom Peterson endorses.

Compared to the first ad, the second ad has an important improvement: Peterson keeps his finger off the trigger until he is ready to shoot.

However, this modeling of responsible gun handling is far outweighed by Peterson actually shooting. High in the air, over the head of someone who is stealing a McMillan yard sign. A very poor decision and a terrible example, in my view, even if it were legal, which I doubt it is. Among the many reasons for my conclusion: the yard sign is presumably located at the edge of Peterson's property, near a public road, so that other people can see it. Ergo, Peterson's high shot in the air traveled across a public road, and there was a very significant chance that it entered someone else's property. I realize that for the production of ad, Peterson might have staged the shot so that it only went on his own property, but the story of the ad is still built around modeling recklessly irresponsible gun use.

In addition, the second ad repeats the claim that Peterson served in the Marines "during Vietnam," which is true only in a Clintonian sense. He did serve in the Marines, but never left the United States. The second ad also repeats the claim (which was presented more elaborately in the first ad) that another candidate has been taking illegal campaign contributions, a claim which is, at best, based on a hyper-aggressive reading of the Alabama campaign finance law. Details here, from Politifact.

Tag line for the ad: "Don't you wish you had Dale Peterson watching your back?" My answer: No. Among the people I do not want behind me with a rifle is someone of questionable character (a propensity for half-truths) and a record of "showing off" with reckless gun handling.

Categories: Uncategorized     77 Comments

Emmy Award Nomination

David Kopel• June 14, 2010 12:58 pm

Every Friday, I participate in a weekly public affairs roundtable program, Colorado Inside-Out, on Denver's KBDI television, channel 12. Every summer we do a "time machine" episode. Last summer's 1959 episode has been nominated for a regional Heartland Emmy award. I play Charleton Drizzelwhit-Koplowitz, book review editor of the Rocky Mountain News. In real life, my father Jerry Kopel worked at the Rocky Mountain News earlier in the decade (when his last name was Koplowitz), and among his jobs was book reviewing.

Categories: Uncategorized     4 Comments

The Dale Peterson Ad

David Kopel• June 1, 2010 12:19 pm

I don't live in Alabama and I'm not a registered Republican. But if I were, this ad would convince me not to vote in the primary for Dale Peterson for Agriculture Commissioner.

Somebody who's been  a Marine, a cop, and a farmer ought to know elementary gun safety. Yet when Peterson takes out a rifle near the end of the video, he puts his trigger finger inside the trigger guard. I realize that the gun in the commercial is just a prop, and was almost certainly unloaded. However, the Agriculture Commissioner should model good behavior, and the viral ad itself, with over a million views, is a model of unsafe and irresponsible gun handling. Perhaps most of the viewers know better than to handle a gun in the dangerous manner than Peterson does, but at least some viewers won't know that what Peterson is a violation of gun safety rules; some of them may think that he's showing the normal way to carry a gun, and some of those viewers might one day attempt to carry a gun the way Peterson does. Accordingly, Peterson's ad itself increases the possibility of accidents from unsafe handling of firearms.

Categories: Guns     89 Comments

Bringing a case against Arizona before the Inter-American Commission on Human Rights

David Kopel• May 27, 2010 12:23 am

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Organization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, located in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court's "adjudicatory function." (In an adjudicatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjudicatory function is available only if the defendant government has accepted the Court's jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court's jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government accepted the jurisdiction of the Inter-American Court, neither the Court nor the Inter-American Commission on Human Rights can issue a legally binding decision against the Arizona laws against illegal aliens. Either the Commission or the Court could issue non-binding advisory opinions as to whether the Arizona laws violate international law.

Categories: Immigration, International Human Rights Law     47 Comments

The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

David Kopel• May 24, 2010 3:56 pm

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell's paper concentrates on Simkins' career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown's book The Invisible Empire: The Ku Klux Klan in Florida.

The Florida KKK organized in 1867–68. Simkins later described himself at the Klan leader in Taylor, Madison, and Jefferson counties. These three contiguous counties are part of the eastern panhandle, east of Tallahassee. As far as the record shows, Simkins never claimed that any Klan actions in those counties had been carried out contrary to his orders, or that he regretted anything the Klan did in those counties. Accordingly, it is plausible to hold Simkins personally responsible Klan activity there.

Federal troops were withdrawn from Florida in July 4, 1868. From July 8 through 14, five blacks were murdered by "white regulators." In mid-July through October 1868, the Madison County KKK murdered seven more blacks, including Randall Coleman, a leading Republican.

In Taylor County, "masked night riders paraded with KKK flags and threatened farmers who refused to join the Klan."

Florida's Governor Reed had purchased two thousand muskets for the state militia. On the night of November 5, 1868, while the train carrying the muskets had stopped at the Greenville station in Madison County, Klan raiders removed all two thousand muskets–destroying some, and keeping the rest. Simkins later bragged that "Every telegraph operator, brakeman, engineer and conductor on the road was a Ku Klux."

The Jefferson County Klan coerced white farmers into refusing to sell land to freedmen, or to taking the money, and then having the Klan drive the freedmen off his new freehold.

According to Newton, Madison County was the second-worst county in Florida for Klan violence, with 25 murders from 1868–71. The victims were always members of the Republican party.

On the night before the November 7, 1870, election, "armed riders invaded" the town of Madison, "harassing black voters." On election day in Monticello, Jefferson County, "Georgia Klansmen joined the local mob and hundreds of shots were fired in a riotous demonstration of white solidarity," intended to frighten blacks against voting.

The election results left the state government weakly in reconstructionist hands. The store belonging to Madison County Sheriff Montgomery was burned on December 17.

Congress passed a new, stronger Enforcement Act in April 1871, and in November, a congressional subcommittee held four days of hearings in Tallahassee about Klan crimes. Even so, another Republican's store was torched on November 6, 1871. However, President Grant's October declaration of martial law in nine South Carolina counties had a chilling effect on the Klan, and by 1873, Florida Klan supporters were denying that there have had been a Klan in Florida, or were claiming that if there had been one, it was no longer active.

Simkins himself happened to leave Florida for Texas in either 1871 or 1873. (Sources conflict.) He participated in two 1894 U.S. Supreme Court cases, Reagan v. Farmers' Loan & Trust Co. and Reagan v. Mercantile Trust Co. He supported the Texas Attorney General's argument that the judiciary had no power to review the reasonableness of railroad rates which had been established by the Texas Railroad Commission. The Supreme Court, in an unanimous opinion by Justice Brewer, disagreed.

That Simkins was an advocate of the unreviewable power of unreasonable government economic regulation should be no surprise. As David Bernstein explains in his book Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, the caste system of Jim Crow was founded on government power to prevent black and white people from freely choosing to engage in economic relations.

Last Friday, the University of Texas announced the formation of a special working group which will issue a report on the Simkins naming controversy by the end of June.

Simkins should have been denied admission to the Florida bar in 1870, based on his admitted role in the theft of firearms from the militia of the state of Florida, and his role in organizing and leading a terrorist organization which appears responsible for numerous homicides and many other violent felonies. In 1870, the Florida Supreme Court did not know of the evidence regarding Simkins' terrorist crime spree in 1868–70,  but the 2010 working group will have more information.

Of course the fact that a person is an unrepentant, retired, terrorist is not necessarily a bar to being a professor at a prestigious law school–not for William Stewart Simkins at Texas in the early 20th century, or for Bernardine Rae Dohrn at Northwestern in the early 21st century.

Readers who are interested in more on the Simkins controversy may enjoy the blogging thereon at The Faculty Lounge, which has been covering the story since Russell released his paper.


Categories: Academia, Congress, Constitutional History, Counter-Terrorism Policy, Criminal Law, Economic Liberties, Education, Guns, History, Law schools, Legal professor, Militia, Rehabilitating Lochner     63 Comments

President Calderon's claim about "assault weapons"

David Kopel• May 21, 2010 5:40 pm

Examined in this blog post by my Heritage Foundation co-author Ted Bromund.

Our Background about the CIFTA gun control convention, which President Obama has urged Congress to ratify as a favor to Mexico, is here.

Categories: Guns, International Law     58 Comments

What is a zoobow?

David Kopel• May 20, 2010 6:04 pm

In Massachusetts, it is illegal to sell a "zoobow." Mass. Gen. Laws Ann ch. 269, sect. 12. It is also illegal to sell a manrikigusari, nunchaku, shuriken, or klackers (the children's toy popular in the early 1970s). The Massachusetts law does appear to have prevented the klackers violent crime epidemic which now plagues the other 49 states.

The minimum sentence for selling any of the above weapons in Massachusetts is two and half years in prison. So I want to be careful that when I am in Massachusetts, I do not violate this law by selling a zoobow. However, "zoobow" does not appear in The New Shorter Oxford English Dictionary, and I have been unable to find a definition on the web.

Accordingly, I would be grateful if a commenter could explain what a zoobow is.


The OAS Firearms Convention Is Incompatible with American Liberties

David Kopel• May 19, 2010 12:47 pm

Just published on-line this morning is the above Backgrounder from the Heritage Foundation. My coauthors are Theodore Bromund  and Ray Walser, of Heritage. We argue that the CIFTA gun control convention, which was drafted by the Organization of American States, and which President Obama has urged the Senate to ratify, would harm First and Second Amendment rights. We suggest that the convention offers no practical benefits to the United States.

Categories: Freedom of Speech, Guns, International Law, Registration, Regulation     16 Comments

Kurt Lash on Privileges or Immunities

David Kopel• May 18, 2010 8:57 pm

Part 2 of 3-part series. This installment, "The Origins of the Privileges or Immunities Clause, Part II: John Bingham's Epiphany," has a very detailed analysis of changes in the drafts of the 14th Amendment.  Lash argues that the drafting history shows that the Fourteenth Amendment was intended to protect every part of Amendments I through VIII, but not to protect any unenumerated rights.

I'm still inclined to a broader view of the 14th Amendment, but perhaps I will change my mind after reading Part III of the series. Regardless, anyone with an interest in the original meaning of the 14th Amendment will benefit from reading this article. Obviously the aforesaid group does not include most of the current Justices of the Supreme Court.

Categories: Fourteenth Amendment     28 Comments

Freedom is not Enough: The Moynihan Report and America's Struggle over Black Family Life–from LBJ to Obama

David Kopel• May 17, 2010 9:11 pm

I interviewed Brown University history professor James T. Patterson about his book examining the tragic rise of illegitimacy rates, and the American political elite's refusal to address the problem for decades. MP3, 50 minutes. During the course of our discussion, I mentioned my own writing about successful early intervention programs for at-risk children; that writing is contained in this Barry Law Review article, text at notes 214–28. (A much more detailed analysis is contained in my book Guns: Who Should Have Them?).

Tags: ,

Categories: Child Protection, Civil Rights, History     47 Comments

NRA Convention report

David Kopel• May 17, 2010 7:07 pm

The NRA's annual members meeting was held last weekend, in Charlotte, North Carolina. Since I've been going to these events for the last two decades, I'd like to offer a report on how the Convention has changed over the years, and some thoughts about the NRA's past and present.

First of all, the annual meeting grown from "large" to "enormous." This year's convention drew 72,128 NRA members. It's now so big that relatively few US cities with the convention facilities that can accommodate it. The 2010 meeting was the largest event ever held in the city of Charlotte, and the people of Charlotte were very welcoming, and the facilities were well-run.

The Exhibit Hall, where manufacturers of firearms, hunting gear, and related accessories show off their products to consumers, was a three mile walk, if you went through each row. The shooting industry's annual trade show (SHOT -- Shooting, Hunting and Outdoor Trades) is even bigger, but you have to be a firearms retailer, or otherwise engaged in the firearms business, in order to be able to attend SHOT. So for most persons, the NRA exhibit hall is the best opportunity ever to examine products close up, talk to manufacturer's representatives, and so on. As has become the norm in recent years, the exhibit hall was so full most of the day Saturday that it was difficult to walk at more than a slow space. (Friday and Sunday were easier.)

Traditionally, the highlight (at least for me) has been the annual members' banquet on Saturday evening. Last year in Phoenix, the banquet set the record as "the largest meal ever served in the state of Arizona." Even then, there were many people who wanted to attend, but could not get tickets. So this year, the banquet was replaced by an evening event at the nearby basketball arena (the Time-Warner Cable Center), which drew 11,754 to hear a Charlie Daniels concert, plus speeches by Glenn Beck and Newt Gingrich, as well as by NRA Executive Vice-President Wayne LaPierre.

A notable addition in recent years is the Friday afternoon "Celebration of American Values" leadership forum. This too took place at the basketball arena. As Jim Geraghty of National Review Online reported, the event now serves as a cattle call for politicians who may have national ambitions.  Speakers this year included Sarah Palin, John Thune, Haley Barbour, and Mike Pence, plus North Carolina Democratic Congressman Heath Shuler. The CAV is a relatively recent addition to the Annual Meeting. Because the Saturday banquet can only accommodate one or two headline speakers, the CAV provides NRA with a more opportunity build relationships with leading political figures.

New media was present, with NRA staff twittering the convention for the first time, plus the now-established events for the dozens of "gun bloggers" who attend. The oldest "new media" at the convention was NRA News, the NRA's satellite radio program which airs three hours every weekday on Sirius (and, starting today, also on XM) as well as on the Internet. NRA News had a studio on the convention floor, and broadcast nearly round the clock over the weekend. [For NRA News video of the weekend's speeches, go the NRA News website, and then look in the video archives for May 14 or 15.]

The Continuing Legal Education seminar at the Annual Meeting has been in operation for about a decade and half, a Friday program that provides hundreds of lawyers with eight hours of low-cost CLE, and greatly helps to expand the number of lawyers who have the knowledge to handle firearms cases–whether the case is an administrative law issue for a licensed firearms dealer, or a constitutional defense.

Among the interesting presenters at the CLE was Stephen Halbrook, discussing his draft article for the Northeastern Law Review symposium, in which he commented on this passage in Chicago's brief (p. 19, n. 9) in McDonald: incorporation "would raise questions whether a weapon generally in common use for lawful purposes in one locale (such as a high-powered hunting rifle with precision sighting equipment popular in rural Illinois) must be allowed elsewhere, precluding a ban on use by Chicago gangs seeking to assassinate rivals."

Stated another way, Chicago wants the legal option to ban ordinary rifles used for hunting deer and other big game. Rifles which, by the way, are currently owned by Chicago residents, and are lawfully used by them for hunting and target shooting. Chicago's argument certainly refutes the notion that nobody in the gun control movement wishes to ban hunting long guns.

Throughout the three days of the convention, there are seminars on all kinds of topics, from hunting to self-defense to firearms history. The one I attended was Sniper: Myths and the Media & Winning the Sniping War in Iraq. Major John Plaster gave a very interesting presentation on the sniper war in Iraq from 2004 to 2008, perhaps the most extended sniper conflict in the history of warfare. He explained how the Iraqi insurgents nearly won that conflict in 2005-06, and how the U.S. forces finally turned the tide by changing their tactics, and bringing in substantial additional resources, including forensics teams who could lift fingerprints from recovered insurgent guns.

But the main reason I went was for the other speaker, Stephen Hunter, the Pulitzer Prize-winning journalist from the Washington Post and the Baltimore Sun. Now retired from newspapers, Hunter is a novelist, and in his most recent mystery-adventure novel, I, Sniper, I am a very minor character. It's the first time I have ever appeared in a novel, so like a Pirandello character in search of his author, I made sure to say hello to him, and get him to sign my book.

In sum, the NRA Annual Meeting showcased an organization that is strong and getting stronger, largely because of its increasing ability to mobilize the grassroots. Twenty-five years ago, if you joined the NRA, you got a monthly magazine, plus direct mail requests for additional donations, and occasional legislative alerts. Now, the NRA is in touch with its members daily (at least the members who want daily updates) via NRA News, the website, e-mails, blogs, and so on. As the Annual Meeting continues to scale up, the organizers are doing a solid job of giving members the opportunity not only to be part of very large crowds, but also to participate in smaller events with one-on-one conversations.

Throughout the meeting, at event after event, the key word was not "rifle" or "gun." In Charlotte, as at every convention for at least the last ten years, the word was "American." This is reflected in part in the genuine veneration which the NRA, at all levels, has for the American armed forces. The NRA membership and staff have a high proportion of military veterans, and at any convention event, a call-out to the active duty soldiers typically leads to a standing ovation.

But more broadly, the NRA considers itself the embodiment of American patriotism, as the direct descendant of Washington, Jefferson, and Madison. This isn't a point about constitutional originalism, but it is a point about four million people who have never thought that it was uncool to be patriotic, and who very much see themselves as carrying forward the sacred flame of liberty that was lit in 1776, was fought for on the beaches at Normandy and Guadalcanal, and which is based on eternal truth.

Like any social and political movement, the NRA at times defines itself as oppositional–as resisting "the anti-gun mainstream media," or Bill Clinton, or Michael Bloomberg. But the National Rifle Association of America is incapable of being oppositional to America itself, or of imagining itself to be countercultural. Founded in 1871 by Union army officers, and led in his early days by bipartisan Union Generals (such as retired U.S. President U.S. Grant, a Republican; and Winfield Scott Hancock, "the hero of Gettysburg" and the 1884 Democratic presidential nominee), the NRA has always defined itself as the mainstream of America. Probably the only civic organization whose membership has included more U.S. Presidents than the NRA is the Boy Scouts–and that's because the Boy Scouts make every U.S. President into their honorary President. In short, Whig history is alive and well at the NRA, and based on the present and past successes of NRA in shaping American culture as a gun culture, that view of history cannot be said to be inaccurate.

Categories: Guns, Politics, Popular Culture    

Right-leaning bloggers like dark horses better than front runners in 2012

David Kopel• May 16, 2010 7:47 pm

The online daily newspaper The New Ledger has debuted its "online influencers poll." It's a monthly poll "of 100 online influencers on the right. We asked leading voices from around the blogosphere, with writers from Redstate, National Review Online, The Weekly Standard, HotAir, Commentary, BigGovernment, individual bloggers, and others throughout the conservative/libertarian thinktank world to weigh in." The first poll asked about preferences for the Republican nominee for President in 2012.

Question 1 asked for ordered preferences among six candidates. Indiana Governor Mitch Daniels turned out to be the big favorite, with Tim Pawlenty and Mike Pence also faring well. Pawlenty was rarely a favorite, but he was acceptable to almost everyone as a backup choice. Mitt Romney and Newt Gingrich came in fifth and sixth.

The second question included more dark horse candidates. Paul Ryan, with 30%, ran away with first place, followed by Mitch Daniels and John Thune. Sarah Palin polled only six percent, and Mike Huckabee came in last, with zero votes.


Mothers Against Debt

David Kopel• May 16, 2010 7:05 pm

A new grassroots organization started by my Independence Institute colleague Amy Oliver. This short video shows the growth in per-person national debt in the United States. Even when you take into account the fact that some of the increase in nominal debt is due to inflation, the tremendous increase in debt in the 21st century is frightening.

Categories: Economy     28 Comments

Kagan's record on guns

David Kopel• May 14, 2010 11:45 am

Discussed by Brian Darling, of the Heritage Foundation, in an article this morning for Human Events. Hopefully the confirmation hearings will provide an opportunity for Kagan to explain whether her views of the Second Amendment have evolved or changed since her days as a clerk or a Clinton staffer.

Categories: Kagan Nomination     61 Comments

New lawsuit on Obamacare

David Kopel• May 13, 2010 1:50 am

Just filed in the Northern District of Ohio. (HT Jacob Sullum, of Reason.) Lead attorney is Jonathan Emord, formerly a Vice-President at Cato, and head of a firm with extensive experience in litigation against the Food and Drug Administration and other federal agencies on medical issues. The complaint is here.

In the complaint, the material about the interstate commerce power and the tax power is fairly standard. What makes the lawsuit significance is a well-developed argument (subject, of course, to the caveat that a complaint is not a brief) on medical privacy issues. Primarily, that the compelled disclosure to insurance corporations and insurance agents of private medical information (as well as urine or DNA samples and so on) is a violation of Fifth Amendment liberty, and of the constitutional right of privacy. Further, coercing individuals to associate with insurance companies and insurance agencies is a violation of the right of association, a right derivative of the First Amendment, but, as developed in later case law, not at all limited to classic First Amendment associations such as political or expressive organizations.

Categories: Health Care     134 Comments

A reliable book about 1877

David Kopel• May 12, 2010 3:29 am

Eugene Volokh notes the forthcoming book from the audaciously fraudulent and inaccurate writer Michael Bellesiles, 1877: America's Year of Living Violently. Because 1877, unlike gun ownership, is not currently a controversial topic in the United States, it is possible that nobody will track down Bellesiles' footnotes to see if they support his claims. However, readers who are interested in 1877, and who want to read a book which has stood the test of time, would be well-served by Robert Bruce's 1877: Year of Violence. I read it in high school, and learned a lot from it.

Categories: History     25 Comments

Clinton staff: "We are taking the law and bending it as far as we can to capture a whole new class of guns." Kagan wrote the Clinton ban on gun imports.

David Kopel• May 11, 2010 4:01 pm Edit

The Chicago Tribune's James Oliphant reports: "According to records at the William J. Clinton Presidential Library in Little Rock, Ark., she also drafted an executive order restricting the importation of certain semiautomatic assault rifles."

When ban was announced, Clinton staffer Jose Cerda stated, "We are taking the law and bending it as far as we can to capture a whole new class of guns." [Los Angeles Times, Oct. 22, 1997].

The import ban was made permanent in the spring of 1998. Here's an explanation I wrote, as part of an article on Rahm Emanuel for America's 1st Freedom, which is a NRA member magazine:

In 1998, Clinton forbade the import of 58 types of firearms and their accessories. . . . 

Emanuel defended the ban on The NewsHour with Jim Lehrer, repeatedly claiming that the banned guns were ‘military weapons, not sporting weapons.'

‘Those weapons were designed for one purpose--military--and they don't belong on our streets,' he insisted.

Emanuel asserted that Clinton had banned "the AK-47," which was pure nonsense. The AK-47, which is a fully automatic rifle, was not covered by the import ban. Indeed, not one of the guns banned was an automatic, nor were any of the guns manufactured primarily for military use.

All the banned guns were used in target competitions. Some had names like "Hunter" or "Sporter." So how did Clinton and Emanuel get around the 1986 federal law requiring that imports must be allowed if the gun is "particularly suitable for or readily adaptable to sporting purposes"?

Emanuel argued that it was permissible to ban the guns because [a Treasury study found that] comments from hunting guides showed that the guns were rarely recommended for hunting trips. As if the only gun that is a "sporting" gun is one used by people who can afford to take trips with a professional guide.

Emanuel further contended that the guns should be banned because they "accept rounds in the 20, 30, 40, in some cases 100 rounds at a case" [sic]. Of course, every gun that accepts a detachable magazine can accept a detachable magazine of any size. So Emanuel's theory would actually set the stage for a ban on every gun that uses a detachable magazine.

Democratic Senator Pat Leahy, who was then the ranking member of the Senate Judiciary Committee, wrote to President Clinton that he "strongly believes that using a Presidential directive to avoid the normal legislative process regarding any changes to the assault weapons ban is the wrong way to go."

The list of banned guns is here, at page 167.

Categories: Guns, Kagan Nomination     16 Comments

Bloggers disagree on politics of offshore drilling, and immigration

David Kopel• May 10, 2010 6:41 pm Edit

The latest National Journal poll of political bloggers asked: "With the Gulf of Mexico oil spill, does it make political sense for President Obama to stick to his plans to allow increased oil and gas development along the coasts?" Only 6% of the Left, but 75% of the Right thought that it did still make political sense. I thought it didn't make political sense, unless the President were ready to make a strong affirmative case: "The president would have to convince the public why some types of new drilling would not pose the same risks that the BP well did."

The other question asked what is best for the Democratic/Republican parties this year on immigration. Two-thirds of the Left thought Democrats would be best off with a pathway to citizenship, and without any tougher enforcement. Nobody on the Right thought that would be a good idea for Republicans. The Right bloggers split between citizenship + enforcement, enforcement without citizenship, and "stay away from the issue."

My vote was for the middle choice, at least as the essential first step: "Effectively closing the border has to come first. Offering citizenship but without effectively securing the border would simply repeat the mistake of 1986 and result in even more illegal immigration."

This poll marked the last of the National Journal's weekly blogger polls as part of NJ's "Blogometer." The National Journal is undergoing major budget cuts, and Blogometer is disappearing, although parts of its will be folded into other National Journal coverage.

Far worse, from a social utility point of view, than the disappearance of the blogger polls is National Journal cutting Stuart Taylor's weekly column. Taylor is one of the best legal journalists in the United States, and he will continue to write for a variety of other outlets. However, the loss of his weekly column is a major loss of high-quality legal journalism.


Categories: Blogosphere, Energy, Immigration     23 Comments

Colorado State University board rescinds ban on licensed firearms carry

David Kopel• May 5, 2010 5:30 pm Edit

The ban at the Fort Collins and Pueblo campuses, had been scheduled to take effect on August 1. The prospective ban had been imposed last winter, by a unanimous vote of the Governing Board, and against the express vote of the Student Senate. Congratulations to Rocky Mountain Gun Owners for bringing the case.

As the CSU spokesperson explained, the Governing Board really had no choice, in light of the recent Court of Appeals ruling in Students for Concealed Carry on Campus v. Regents of the University of Colorado. There, the unanimous three-judge panel ruled that Colorado's Concealed Handgun Act, which is explicitly preemptive, had no implicit exception for state institutions of higher education. The University of Colorado has not yet announced whether it will petition the Colorado Supreme Court for certiorari in that case.

At the Fort Collins campus, firearms carry licensees (who must be 21 years or older, under Colorado law) had carried without incident ever since the enactment of the Concealed Handgun Act in 2003. The Fort Collins campus, which is the larger CSU campus, is located in north-central Colorado, in Larimer County. Sheriff James A. Alderden strongly opposed the CSU ban, said it was illegal, and announced that his deputies would not waste time arresting anyone for violating the Board's ban on licensed carry. Colorado's Concealed Handgun Act is modeled on licensing policies which Sheriff Alderden has been using in Larimer County since the 1990s.

Categories: Guns120 Comments

State court standards of review for the right to arms

David Kopel• May 3, 2010 3:52 pm Edit

Forthcoming in a symposium issue of the Santa Clara Law Review, final version here. This 108-page article, which I wrote with Clayton Cramer, surveys the leading state constitution right to arms cases, from the Early Republic to the present. The article examines the various  standards of review that state courts have used in examining gun control laws under state constitutional right to arms provisions.

Some courts have used what, in modern terms, would be called "categoricalism." In other words, is "X" within the right to arms or not? For example, some courts ruled that Bowie knives are not protected by a state constitutional provision because they are not the type of "arms" that the state constitution was meant to protect. The use of categoricalism is well-established in a First Amendment context (e.g., "the freedom of speech" includes political commentary, but does not include conspiracies in restraint of trade), and categoricalism is among the First Amendment tools that can be, and have been, used for state right to arms guarantees.

Likewise, some courts have used the First Amendment/Fourteenth Amendment tools of narrow tailoring, least restrictive alternative, and overbreadth. These are, of course, the tools of strict scrutiny.

Still other courts have employed balancing tests–sometimes in a fairly rigorous way that resembles intermediate scrutiny, at other times in a vague way that gives little guidance to future courts.

And there have been other courts (most notoriously, the Illinois Supreme Court in Kalodimos, upholding the Morton Grove handgun ban) which have been hostile to the constitutional right, and which have opined that as long as the right is not destroyed, any limitations short of destruction are acceptable.

Post–Heller, federal courts analyzing Second Amendment issues may look to state decisions for guidance. Our article explains how Heller itself shows which state cases can be useful to modern courts, and which cases are inconsistent with Heller (such as the cases which apply "rational basis" or some functional equivalent, or the cases which imply that a ban on most handguns would be constitutional).

Categories: Constitutional History, Guns1 Comment

Debate on constitutionality of Obamacare

David Kopel• April 30, 2010 1:03 am

Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.

Categories: Congress, Constitutional History, Economic Liberties, Federalism, Health Care, Supreme Court

Mayor Daley and other Mayors: Seek "redress against the gun industry" in the World Court

David Kopel• April 28, 2010 3:36 am

April 27 was the tenth annual "Richard J. Daley Global Cities Forum," held in Chicago. Over a hundred mayors and other local government leaders assembled to discuss global issues. As reported in the Chicago Sun-Times, "Daley convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world' in The Hague."

At a news conference, Daley explained, "This is coming from international mayors. They're saying, ‘We're tired of your guns, America. ... We don't want those anymore because guns kill and injure people.'"

Among the supporters of the Daley resolution was Mexico City Mayor Marcelo Ebrard Casauban, who said that "85 percent" of Mexican drug cartel guns come from the United States. Philadelphia Mayor Michael Nutter also endorsed a World Court case, because "I love the 2nd Amendment," but "I have a 1st Amendment right not to be shot."

In 1998, Chicago Mayor Daley and New Orleans Mayor Marc Morial filed the vanguard of what would become three dozen municipal lawsuits against the firearms industry. The lawsuits were not successful in court, but they did come very close to convincing firearms manufacturers to capitulate. The suits were finally ended by the Protection of Lawful Commerce in Arms Act, signed into law in 2005.

So what are the rules in the International Court of Justice (which is informally called "the World Court")? Chapters 36 and 37 of the ICJ statute define the Court's jurisdiction.

The classic World Court case is a nation vs. nation dispute in which both parties have submitted to the Court's jurisdiction. For example, Jamaica and the Bahamas ask the World Court to settle their disagreement about who owns some tiny islands in the Caribbean. A World Court ruling in such a case is binding.

In these state v. state cases, no other party participates, but the World Court can receive information from NGOs, government agencies, and so on.

Thus, the plaintiff in a ICJ might be the state of Mexico itself. In a state v. state case, a state can assert the interests of its nationals. For example, Mexico might assert the interest of Mexicans who are allegedly harmed by firearms manufacturers which are permitted to operate in the United States or in other nations.

There are four modes of state consent to ICJ jurisdiction:

First, the parties themselves can ask the ICJ to hear the case.

Second, the Court has jurisdiction over "matters specifically provided for ... in treaties and conventions in force." That is, a treaty may declare that it gives the ICJ the authority to resolve disputes arising under the treaty.

Third, a state may make a general declaration that it will accept ICJ jurisdiction.  When the case of Nicaragua v. United States was brought during the Reagan administration, the United States withdrew from ICJ jurisdiction. The decision was made by Executive authority, and could be changed by Executive authority.

Finally, jurisdiction can be based on tacit consent (forum prorogatum).

Besides issuing legally binding opinions in state v. state cases, the ICJ can also issue advisory opinions. Certain United Nations agencies and bodies have the authority to ask the ICJ for an advisory opinion. For example, the United Nations General Assembly asked the ICJ for an advisory opinion about Israel's defensive wall. The ICJ condemned Israel's anti-terrorist barrier as a violation of international law.

An ICJ advisory opinion is not, in itself, legally binding. However, other courts may accept the ICJ opinion as a definitive statement of international law. So the courts which do have power to compel the state (e.g., a nation's own Supreme Court; or the European Court of Justice) could take the ICJ opinion, and then issue their own order requiring the national government to comply with international law as persuasively declared by the ICJ.

The ICJ has already shown itself to be willing to get involved in weapons control. In the 1996 case Legality of the Threat or Use of Nuclear Weapons, the ICJ was asked by the UN General Assembly for an advisory opinion on the legality of the use of nuclear weapons. The Court ruled 11–3 that nuclear weapons per se are not prohibited by any international law, but held  that most uses of nuclear weapons would be prohibited by general laws of warfare (e.g., the prohibition on targeting civilians).  Further the Court held that there was a legal obligation for complete nuclear disarmament: "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control."

A court which feels competent to mandate complete nuclear disarmament may not feel reluctant about granting the relief sought by Mayor Daley's international allies.

Of course whether Mexico (or some other nation, such as Brazil, whose President Lula is an ardent advocate of gun prohibition) would bring an ICJ case is at present unknown. Likewise unknown is whether the US would consent to suit, or whether the ICJ would infer some kind of tacit consent. It is also unknown whether Mayor Daley and his allies could accomplish some of their objectives by suing other nations (perhaps with the consent of the nominal "defendants") which have domestic firearms industries which export to the United States civilian market, and which have explicitly consented to ICJ jurisdiction.

A 2003 article by Joseph Bruce Alonso in the Journal on Firearms & Public Policy explores the legal interplay between international and domestic law in legal cases involving gun control. The short answer is that the Second Amendment might provide some protection in US courts, but would offer little protection from international court actions taken against US nationals–such as the seizure of foreign assets owned by US corporations.

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Categories: Guns, International Law.


Deacons for Defense and Justice

David Kopel• April 26, 2010 6:56 pm

Very nice New York Times obituary of Robert Hicks, one of the leaders of the Deacons for Defense and Justice in Louisiana in the 1960s. A good example of how Second Amendment rights were used to protect Fourteenth Amendment rights.

Categories: Guns12 Comments

Debate on constitutionality of Obamacare

David Kopel• April 26, 2010 6:49 pm

This Wednesday, April 28, at the University of Colorado Law School, Wolf Law Building, 7–9. Sponsored by the American Civil Liberties Union of Colorado, Boulder Chapter (of which I am a card-carrying member). Arguing for the Obama bill (and against Colorado Attorney General Suthers' participation in the suit against the bill) will be former Colorado Supreme Court Justice Jean Dubofsky. Arguing against the bill will be me. The event will be live-cast on the ACLU of Colorado's website.

Categories: Health Care 7 Comments

Mayor Bloomberg's gun show bill

David Kopel• April 26, 2010 6:37 pm

Does much more than just impose background checks small-scale vendors at gun shows. Details here, in this article I wrote for the Saturday Denver Post.

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Categories: Guns, Registration 65 Comments

Bloggers think Repubs should associate with Tea Party. Disagree on whether independent run would help Crist

David Kopel• April 23, 2010 1:13 am

"How closely should the Republican Party align itself with the Tea Party movement?" In this week's National Journal poll of political bloggers, 65% of the Left and 78% of the Right says "somewhat" or "very" closely. However, the Left was mostly "very" while the Right favored "somewhat." My answer had less to do with the movement per se than with its ideas: "If the Republican Party for the last 10 years had paid more attention to the Tea Party's core concerns (spending restraint, and Congress only passing laws that are within the enumerated powers which the Constitution grants to Congress), Republicans might not have lost their congressional majorities."

The other question was "Would Florida GOP Gov. Charlie Crist benefit by running for the Senate as an independent?" Eighty percent of the Left said "yes," but only 33% of the Right thought so. I thought "yes," as long as the only question is the Senate in 2010: "It certainly seems that his chances of being elected to the Senate as a Republican are dim, so his chances as an independent might be greater. However, if he foresees a possible future in the Republican Party (e.g., as an appointee of a Republican president who might be elected in 2012), running as an independent would be very harmful for his long-term career."


Categories: Uncategorized 47 Comments

Big First Amendment win in United States v. Stevens

David Kopel• April 20, 2010 1:00 pm

At issue: a federal statute bans commercials depictions of "animal cruelty," namely a depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if killing or other action violates the law where the "the creation, sale, or possession takes place." The statute would therefore outlaw the sale in the United States of a bullfighting video produced in Spain (since bullfighting is not legal in the United States), the sale of any hunting video or magazine in the District of Columbia (since no hunting is allowed in the District) or the sale of a crossbow hunting video or magazine in the many states which allow hunting with compound bows but not with crossbows.

There is an exception for a depiction "that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

An 8–1 decision by written by Chief Justice Roberts held the statute to violate the First Amendment. The decision declines the government's invitation to create a balancing test in order to add a new exception to the First Amendment. The government's promise to enforce the very overbroad statute narrowly could only rescue the statute if the statutory language were susceptible to a limiting construction.

Relying on amici briefs from two organizations to which I happily belong (the Professional Outdoor Media Association and the National Rifle Association), the Court details how the statute means that the sale of videos and magazines depicting lawful hunting in one state would be a felony if the video were sold in a state whose regulations did not allow that particular type of hunting.

The government argued that hunting videos and magazines are protected by the exception for depictions of "serious" educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen's Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least "scant" value. However, the majority declines to read "serious" as equivalent to "scant." Therefore, the statute outlaws most of the billion-dollar industry in hunting videos and magazines, at least if any of those videos are ever sold in the District of Columbia.

Accordingly, the statute is plainly invalid under well-established First Amendment doctrine.

Justice Alito, the lone dissenter, would read the statute to encompass only "animal cruelty" and would also presume that any depiction of lawful hunting has "serious" value. He notes "the predominant view in this country has long been that hunting serves many important values, and it is clear that Congress shares that view." (Citing many presidential proclamations of National Hunting and Fishing Day, which was instituted at congressional request).

Further, writes Justice Alito, "it is widely thought that hunting has ‘scientific' value in that it promotes conservation, ‘historical' value in that it provides a link to past times when hunting played a critical role in daily life, and ‘educational' value in that it furthers the understanding and appreciation of nature and our country's past and instills valuable character traits. And if hunting itself is widely thought to serve these values, then it takes but a small additional step to conclude that depictions of hunting make a non-trivial contribution to the exchange of ideas." Therefore, Justice Alito would construe the statute so narrowly that it reaches its intended targets ("crush" videos and dog-fighting videos) without causing extensive collateral damage.

Categories: Freedom of Speech83 Comments


David Kopel• April 20, 2010 2:17 am

With President Clinton wagging his finger at the Tea Party movement and claiming that the movement is inciting violence, it is worthwhile to remember the role the Clinton administration in perpetrating and covering up numerous violent and other crimes at Waco. The subject is treated at length in my book, co-authored with Paul Blackman, No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It. This page provides a summary of the book, a free copy of the first chapter, two law review articles (on the warrant, and on police militarization), several shorter articles, and videos of speeches regarding Waco.

Just to be clear to the trolls who comment without reading: The book describes the Branch Davidian false prophet Vernon Wayne Howell (a/k/a David Koresh) as a predatory sociopath and a criminal. And of course nothing in the book attempts to justify that other sociopath Timothy McVeigh. Nor does the book claim that federal agents deliberately started the fatal fire, although it does point out that before the fire began, at least some of the victims had already been killed by the CS chemical warfare bombardment and tank attack.

Categories: 220 Comments

The influence of French words in English legal terminology

David Kopel• April 20, 2010 1:08 am

Much more extensive and complex than you might think, even if you recognize "acquit" as derived from the Normans. Great podcast on the subject from Lingua Franca, a weekly Australian radio program on linguistics.

Categories: History 22 Comments

The Clinton Terror Bill

David Kopel• April 19, 2010 11:03 am

Former President Bill Clinton is back to practicing one of his core competencies: exploiting the 1995 mass murders in Oklahoma City for political advantage in order to suppress criticism of himself and his political allies. Accordingly, some persons might be interested in reviewing the multiple severe injuries that President Clinton inflicted on the Constitution in his "anti-terrorism" bill and his public relations campaign for the bill, a topic which I explored in a 101 page article in a 1996 special memorial issue of the Oklahoma City Law Review.

Categories: Terrorism174 Comments

Bloggers agree: Little chance for immigration bill, and they hate the VAT

David Kopel• April 15, 2010 9:10 pm

"Senate Majority Leader Harry Reid says ‘we're going to have comprehensive immigration reform now.' Top political bloggers don't see it." So begins the National Journal's write-up of this week's blogger poll. Seventy percent of the Left and 78% of the Right called enactment of a comprehensive bill either "very" or "somewhat" unlikely. I was in the "very" group: "As the passage of ObamaCare showed, the Reid-Pelosi team has extraordinary talent at pushing unpopular legislation through Congress. But it seems unlikely that there will be enough swing-seat Democrats, who are already in enough trouble, willing to change their own chances of re-election from ‘difficult' to ‘nearly impossible.'"

The second question asked the bloggers if they were open to supporting some form of a VAT. Only 1/3 of the Left and 1/6 of the Right expressed openness. I was part of that small minority: "If and only if accompanied by substantial, immediate fiscal reform, such as a balanced budget amendment, major entitlement reform, a large reduction in the percentage of the population who are consumers rather than payers of income tax revenues, and an iron-clad program to pay down the federal debt."

Categories: Congress, Taxes 38 Comments

Major legal win for Students for Concealed Carry on Campus

David Kopel• April 15, 2010 1:17 pm

Students for Concealed Carry on Campus v. Regents of the University of Colorado. Decided this morning by the Colorado Court of Appeals (a three-judge panel of Colorado's intermediate appellate court).  In brief: Colorado's licensing statute for carrying a concealed handgun for lawful protection is explicitly preemptive. The University of Colorado bans concealed carry anyway, arguing that there is an implicit exception applicable to CU. The Mountain States Legal Foundation brings a suit on behalf of SCCC. The trial court dismisses for failure to state a claim. The Court of Appeals unanimously reverses the dismissal, and remands the case for further proceedings. The Court of Appeals holds that: 1. The statutory claim under the Concealed Carry Act should not have been dismissed, because there is no exemption for the University of Colorado. 2. The constitutional claim under the Colorado Constitution's right to arms provision should not have been dismissed; the proper standard of review, under Colorado case law, is "reasonableness", which is a higher standard than rational basis. The Court of Appeals expresses no opinion on the merits of the constitutional claim.

Congratulations to MSLF attorney Jim Manley!

UPDATE: Since the comments thread is mostly a discussion of empirical/policy issues, it is perhaps worth mentioning that the Court of Appeals opinion cites the two major relevant works on either side of the issue: the Brady Center's monograph, and my article in Connecticut Law Review. The court adds that such questions are irrelevant to its decision-making, which seems to be the proper approach for a case that (for purposes of the Court of Appeals decision) involves statutory interpretation, plus articulation of the standard of review for the Colorado Constitution right to arms. Since the statutory interpretation issue basically resolves the case conclusively in favor of Students for Concealed Carry, the trial court on remand probably will not even need to reach the constitutional question. If for some reason the trial court does need to make a constitutional decision, then the court would need to consider empirical evidence and policy issues, as does any court applying any heightened form of review.

Categories: Academia, Guns

Mexico's Federal Law of Firearms & Explosives

David Kopel• April 16, 2010 1:39 am

That's the title of a draft article that I have recently submitted to law reviews. Most of the article is a translation into English of the Mexican federal gun control statute. The article also translates current and past versions of the Mexican Constitution's right to arms clause, and provides some basic information about the operation of Mexican firearms laws, some brief history about gun culture in Mexico, and analysis of claims about the percentage of Mexican crime guns which come from the U.S. civilian market. Thanks to Denver University law student Angelica Tovar-Hastings for helping with the translation.

Categories: Guns 9 Comments

Health insurance mandate as a privacy right violation

David Kopel• April 13, 2010 6:32 pm

Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate,  include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbart's website. 

The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.

18. Plaintiffs do not desire and have no intention to obey what they consider to be an unconstitutional individual mandate . . .

Para. 35: The Constitution gives Congress the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. The tripartite enumeration shows that the "substantially affects" test for regulation of interstate commerce does not imply an infinite power. Since everything affects everything else, at least in some degree, a regulation of Indian or foreign commerce might be justified on the ground that it "affects" interstate commerce. However, the text separates interstate, foreign, and Indian commerce. "Had the Founders intended the commerce power to be unlimited, enumerating three categories of commerce for Congress to regulate would have been wholly unnecessary." (And as Justice Thomas pointed out  in Lopez, the theory of an unbounded interstate commerce power is also contradicted by Article I's enumeration of a separate bankruptcy power.)

70. . . .the compelled purchase of health insurance also constitutes the "taking" of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious "taking" of property.

74. For the purposes of a substantive due process analysis there is no meaningful distinction between a person who asserts the right to contract or associate with another private entity and a person who asserts the right not to enter a contract or to associate with another private entity. Refusal to enter into a contract in the face of an illegitimate demand for a contract is subject to protection under the Fifth and Fourteenth Amendments to the United States Constitution. Just as a person has a First Amendment Constitutional right, in certain circumstances, to be free from exercising freedom of speech, Plaintiffs in this matter have the Constitutional right to be free from entering a private contract or an involuntary association.

In my view, the most interesting paragraph is this one:

75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act's individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress's individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs' present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.

Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure  of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about one's life–and making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.

In your comments, please focus the discussion on the Mississippi class action case.

Categories: Health Care 154 Comments

The Democratic Strategist misdescribes some legal issues

David Kopel• April 13, 2010 12:44 am

The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide "serious, data-based discussion of Democratic political strategy." Today, a special "Urgent" issue was published, regarding the Supreme Court and warning about the "covert extremist agenda" of the Republican right. The report raises an alarm about the legal agenda currently promoted by "the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right." The report provides three examples. First:

Since the 1990's, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a "Christian Nation" in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month's decision by the Texas School Board to remove Thomas Jefferson--the symbol of America's tradition of religious freedom and tolerance--from the states' history curriculum.

The report is accurate in that some (although hardly all, or necessarily most) supporters of the "Christian Right" believe that the government should favor Christianity over other religions. Most of the Christian Right does believe, as did Chief Justice Rehnquist, that in some circumstances the government may favor religion over irreligion. See Wallace v. Jaffrey (1985) (Rehnquist, J., dissenting from decision to declare moment of silence in schools unconstitutional).

The report's description of the Texas State Board of Education (not the "Texas School Board") is inaccurate. Under the new proposed standards, Jefferson is part of the required curriculum for 5th grade American History, 8th grade American History, and the high school class in U.S. Government. He was removed from the standards for World History class, because the Texas State Board thought that he should not be included among "European Enlightenment philosophers." In the 8th grade American History class, not only is Jefferson required, so is his good friend, the famous enemy of organized religion, Thomas Paine. Only George Washington appears in the Texas curriculum standards more often than does Jefferson.

Item 2 in The Democratic Strategists' parade of horribles is the lawsuits against Obamacare:

The basis for such suits--typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution--is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

The word "basis" has a footnote cite to an article by Matthew Yglesias. The Yglesias article criticizes the notion that  Commerce "among the several States"  should be "understood as basically about transporting goods across state lines." Yglesias points out: "the Louisiana Purchase, the Bank of the United States, Henry Clay's ‘American System,' a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy." True enough in a broad sense (although most of Yglesias's 19th century examples do not involve the interstate commerce power). So if the lawsuits were premised on the idea that the federal power over interstate commerce extends only to the sale of goods across state lines, The Democratic Strategist's warning would be apt.

However, if you read the complaints filed by Virginia and by the 18-state coalition led by Florida, there is no argument against the interstate commerce power as it existed on March 1, 2010. Rather, the complaints argue against an unprecedented expansion of the interstate commerce power: namely the purported power to force an individual to purchase a product he does not want to purchase, and an unprecedented use the tax code to punish someone for choosing not to purchase a product.

While the cases do complain about changes in the state funding formula for Medicaid, they never question the constitutionality of Medicaid itself. Thus, an attack on Obamacare is not "automatically and unavoidably a collateral attack" on even an iota of the New Deal and the Great Society. As I have previously detailed, finding the Obamacare mandate and its associated tax to be unconstitutional does not require overturning, or even questioning, a single precedent in existing Supreme Court law.

The third and final item in the parade of horribles:

The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950's and 1960's era segregationist strategies to thwart desegregation and civil rights for African-Americans. [And, later in the document:] Let them bring it on with all the segregation-era legal strategies of succession and nullification.

Well, not exactly accurate. First, the doctrine of "succession" describes how Barack Obama became President after George W. Bush. One of the first uses of the constitutional doctrine of succession was when John Adams became President after George Washington.

The doctrine of "secession" long predated the Confederacy. It was advanced by, among others, some New Englanders who wanted to leave the Union during the War of 1812, by Southerners who advocated the right when objecting to the 1828 Tariff of Abominations, and by some persons at the very end of 18th century who feared that President Adams was moving the country towards dictatorship. Thomas Jefferson, in his 1798 letter "Patience and the Reign of Witches," counseled against secession as response to "a temporary superiority of the one party," notwithstanding the "oppressions of enormous public debt. . . .Better keep together as we are. . . If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost . . . ."

The Democratic Strategist rightly reveres the great Thomas Jefferson, so it is surprising that TDS does not know (or, at least, does not acknowledge) that the constitutional doctrine of nullification was first articulated by Jefferson himself, in the Kentucky Resolution of 1798. As Jefferson put it, "where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy." James Madison, the Father of the Constitution, articulated the milder doctrine of Interposition, in the Virginia Resolution, declaring that the states "have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

The Democratic Strategist affirms "that the Democratic Party proudly upholds the traditional American view of the constitution--the view of the founding fathers of this country--George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams."  The Democratic Strategist then accuses its imagined enemies of being anti-american for allegedly trying "To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights"  and the right of individuals "to ignore any laws they choose."  This is straw man. As far as I know, no employee of The Federalist Society ever said that any individual could ignore any law he chose. All of the Founders, including Washington, Jefferson, Franklin, Hamilton, and Adams, did believe that in cases of great urgency and necessity, disobedience was a moral duty–which is why they helped to remove one government and replace it with another in 1776. Even under that new government, Jefferson and Madison thought that states had a duty to protect their citizens from federal laws which violated both natural rights and the Constitution–as did the Sedition Act, in the view of Jefferson and Madison. And of course many great Americans in the Civil Rights Movement in the 1960s refused to obey racially discriminatory laws which they believed to be contrary to natural rights and the Constitution.

Americans in the 21st century are free to disagree with Jefferson and Madison, just as did many Americans of 1798, since other some other state legislatures voted to reject the call to support the Kentucky and Virginia resolutions.

Near the end, the TDS memo announces: "Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history." May people of every political persuasion resist every attempt to write Thomas Jefferson out of our history. May everyone extol, as does TDS, "the traditional American view of the constitution--the view of the founding fathers of this country." And so in our modern debates on the Supreme Court and judicial policy, may everyone be free to disagree with Thomas Jefferson and James Madison, but let no-one who espouses the constitutional doctrines of these great Americans be maligned as unamerican.


Categories: Constitutional History, Health Care, Politics, Religion and the Law, Religious Freedom, Supreme Court 72 Comments

Inaccurate legal claim from the Democratic Governors Association

David Kopel• April 12, 2010 4:39 pm

Today Nathan Daschle, Executive Director of the Democratic Governors Association, emailed me, as he does once every week or two. This week, his topic was urging me to sign a petition against the State lawsuits filed against Obamacare. [BTW, "Obamacare" is a standard part of political discourse, used by, inter alia, Michael Barone, one of America's foremost political reporters. It is similar to "Reaganomics," which was used to describe President Reagan's economic policies, or "Hillarycare," which was used to describe the health policy proposals promoted by the then-First Lady.]  The letter from Mr. Daschle states: "Legal scholars are unanimous: these lawsuits have no merit."  The text of the petition itself has only four sentences, one of which is "Legal scholars are unanimous in their opinion that these suits have no merit."

The statements are indisputably false. As I have previously detailed, among the legal scholars who contend that Obamacare is unconstitutional are Randy Barnett and Michael McConnell, both of them among the most important constitutional scholars of our time. Their views about Obamacare have appeared in widely-read publications such as the Wall Street Journal, Washington Post, and Washington Times.

Accordingly, Republican Governors who receive the DGA petitions demanding that the lawsuits be terminated might take them with a grain of salt, in that a plainly false claim was used to help induce the petitioners to sign.

Well worth reading is Randy Barnett's Heritage Foundation monograph on the constitutional issues.

Categories: Health Care 55 Comments

Potential Supreme Court nominee records on the Second Amendment:

David Kopel• April 11, 2010 4:11 pm

In order from worst to not-all-bad:

Strongly-ideological, highly-committed gun prohibitionist: Harold Koh.

Extensive record of anti-Second Amendment leadership: Secretary of State Clinton, Sen. Sheldon Whitehouse, Gov. Deval Patrick.

Limited but clearly negative record on right to arms: Judge Diane Wood, Judge Merrick Garland.

Mixed record, but with very little positive: Amy Klobuchar.

Mixed record: Cass Sunstein, Janet Napolitano [negatives include the ridiculous Dept. of Homeland Security report conflating political dissent with terrorism; as governor she signed some pro-right to arms legislation, and vetoed other bills], Jennifer Granholm [like Napolitano, a mixed record as governor, including signing some important reforms].

Unknown: Elena Kagan

Categories: Guns, Supreme Court 140 Comments

Diane Wood on the Second Amendment

David Kopel• April 9, 2010 6:29 pm

In Justice v. Town of Cicero, 577 F.3d 768 (7th Cir., Aug. 14, 2009), Judge Wood upheld the handgun registration ordinance of Cicero, Illinois. The opinion accurately explained that under the then-current law of the Circuit, the Second Amendment was not incorporated in the Fourteenth. Surprisingly, Judge Wood then asserted that even if the Second Amendment were incorporated, the registration requirement is constitutional.

Judge Wood quoted Heller's paragraph stating that the Second Amendment right is not unlimited. As examples, the Heller Court listed prohibitions on carrying concealed weapons, bans on gun possession by convicted felons or the mentally, bans on guns in "sensitive places," and " laws imposing conditions and qualifications on the commercial sale of arms." A footnote explained:  "26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

The Cicero gun registration ordinance fits in none of the Heller opinion's specific list of  permissible gun controls. Pursuant to footnote 26, the proper course for the Wood panel would be to carefully examine whether the registration law were constitutionally permissible. We know from all the Supreme Court's constitutional jurisprudence that some restrictions on rights are unconstitutional, even when the restriction is less than a prohibition. For example, a law requiring a person who wishes to receive communist political propaganda by mail to register with the Post Office is a violation of the First Amendment. Lamont v. Postmaster General (1965). Likewise, a law requiring married women to notify their husbands about abortions is unconstitutional, even though the notification mandate does not ban abortion. Planned Parenthood v. Casey (1992). Regarding abortion (which, unlike the right to arms, is not enumerated in the Constitution), there would obviously be a serious constitutional question if a local government compiled a list of every woman who had an abortion in the jurisdiction.

Judge Wood, however, chose not to examine the registration requirement carefully. Instead, after quoting the above paragraph from Heller, she blithely declared: "Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller." Her apparent rule seems to be that every restriction short of prohibition is acceptable; the Wood rule is contrary to the Court's entire jurisprudence on enumerated and unenumerated rights.

Although Heller did not articulate a formal standard of review, Heller at least stands for the proposition that the Second Amendment right is protected by more than the mere rational basis test.  Accordingly, Judge Wood should have conducted some inquiry as to what interest the Cicero government had in the registration ordinance; simply compiling a list of people who exercise their constitutional rights could hardly be a legitimate government interest, let alone an important one. Second, if she found a constitutionally-sufficient government interest, then she should have examined whether the registration requirement were sufficiently connected to that interest.

Of course conducting the above inquiry is made more difficult by the absence of Supreme Court guidance about whether to use strict scrutiny, deferential strict scrutiny, intermediate scrutiny, "exceedingly persuasive justification" intermediate scrutiny, or some other test. Thus, Judge Wood would have been fully justified in deciding the case purely on incorporation, and leaving registration for another day, should the Supreme Court choose to incorporate the Second Amendment.

Instead, Judge Wood chose to preemptively rule on the constitutionality of gun registration. Her ruling was bereft of the analysis that is necessary for judicial analysis of restrictions on any enumerated right. It is safe to say that Judge Wood has ample legal skills to conduct carefully-reasoned legal analysis when she chooses to do so. Accordingly, it is plausible to infer from her unreasoned opinion a disregard for Second Amendment rights.

Categories: Guns, Supreme Court 151 Comments

Merrick Garland is no friend of the rights of gun owners

David Kopel• April 9, 2010 5:48 pm

Details here, regarding the 2000 case NRA v. Reno, and Judge Garland's refusal to require the Clinton Department of Justice to obey the federal statute requiring the destruction of records of firearms purchases by law-abiding Americans. The decision also suggests a cavalier disregard for privacy rights in general, such as the right not to be put on a government list simply because one engaged in a lawful activity.

Categories: Guns, Privacy 45 Comments

Bloggers unite against finance bill bipartisanship. Split on Obama effect in November

David Kopel• April 8, 2010 6:09 pm

This week's National Journal poll of political bloggers asked the Right-leaning bloggers "Is it in Republicans' interest to work with Democrats on Wall Street reform?" Left bloggers were asked the same question about Democrats. Seventy-one percent of the Right and 67 percent of the Left opposed bipartisan cooperation.

In the minority, I imagined the possibility that a bipartisan final bill might be constructive:  "Sure, if the reform means less taxpayer support for short-sighted and reckless Wall Street firms. No, if the reform means extending the Bush-Obama TARP principle of making taxpayers even more likely to be stuck with the bill for future bailouts."

The other question was "On balance, do you think Obama will help or hurt Democrats in competitive races?" Eighty-three percent of the Right thought he would hurt, but 81 percent of the Left thought he would help.

My view was that he would hurt: "Any district that is competitive will have a lot of independents, and Obama has done a great deal to ruin his reputation among them." The effect could be partially mitigated in statewide races, since Obama might help with turnout from Democrat strongholds that are never in themselves competitive.

Categories: Uncategorized 29 Comments

Public radio program on the modern states' rights movement

David Kopel• April 8, 2010 12:22 am

Today KUER, Salt Lake City, devoted an hour to discussion of the current surge of interest in states' rights. The four participants each appear in a different quarter of the program. The guests were Utah State Representative Ken Sumsion, me, Chip Ward (who claims that the state's rights advocates are not sincere) and Alison LaCroix of the University of Chicago Law School. I thought LaCroix's historical perspective was very thoughtful; her new book, published last week, is The Ideological Origins of American Federalism. You can listen here.

Categories: Constitutional History, Constitutional Theory, Federalism 16 Comments

An Act for the Relief of Sick and Disabled Seamen

David Kopel• April 2, 2010 6:24 pm

This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect.

Sections 1 and 2 of the act impose a 20 cent per month tax on seamen's wages, to be withheld by the employer.

Section 3 requires that all the withheld taxes be turned over to the U.S. Treasury on a quarterly basis, and that the revenue shall be expended in the district where it was collected. The revenue shall be spent to support sick and injured seamen.

So the Act is totally dissimilar to the Obamacare mandate. In the 1798 Act, the government imposes a tax, collects all the tax revenue, and spends the revenue as it chooses. This is a good precedent for programs in which the government imposes a tax and then spends the money on medical programs (e.g., Medicare), but it has nothing to do with mandating that individuals purchase a private product.

Under section 4, if there is a surplus in a district, the surplus shall be spent in the construction of marine hospitals; the executive may combine the tax revenue with voluntary private donations of land or money for hospital construction. The President may also receive voluntary private donations for relief of the seamen, or for operation of the hospitals.

Section 5 instructs the President to select the directors of the marine hospitals. The directors shall make quarterly reports to the Secretary of the Treasury. The directors will be reimbursed for expenses, but will not receive other compensation.

Today, the 1798 Act is viewed as the beginning of the creation of the U.S. Public Health Service.

The Act is very strong precedent for the federal government imposing taxes and dedicating the tax revenue to medical care for the taxed class. Further, the government may provide the medical care directly, or may cooperate with private individuals for the providing of that care. The 1798 Act thus shows that Medicare, while vastly broader in scope than anything from the Early Republic, is generally consistent with constitutional practice of that period.

The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is a solid precedent for federal involvement in health care, and no precedent at all for a federal mandate to purchase private products.

Categories: Constitutional History, Health Care 101 Comments

Destroying the Constitution's Structure is not Constitutional

David Kopel• April 2, 2010 3:38 am

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let's begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using "constitutional" in the normal sense of the word as it appears in most modern public dialogue. That is, "Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?" This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents.

As Jack Balkin, Sandy Levinson, and others have ably pointed out, "constitutional" can be used in a different way, in that people express aspirations about what the Constitution should mean, even if that meaning is contrary to current precedents. For example, a person in 1946 might say "Discrimination against women is unconstitutional." That person would not be describing the current state of the law, but would be making an argument that constitutional interpretation should be changed. Often, these aspirational statements do become constitutional law, especially when they win the hearts and minds of the public. Some of the 1930s decisions upholding parts of the New Deal or its state analogues are examples of the success of this aspirational constitutional rhetoric.  For example, the statement in 1890 that "mortgage relief laws are constitutional and do not violate the Contract Clause" would have been  incorrect in regard to Supreme Court precedent, and was utterly contrary to the original meaning of the Contract Clause. Nevertheless, the Supreme Court later changed its interpretation of the Contract Clause, so that the aspirational statement became an accurate description of the law.

People are free to argue all they want, on the basis of aspiration, original meaning, or anything else, that items (a) through (d) on Orin's list are unconstitutional. If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d). However, my argument is based on the law as it actually exists today, and it presumes the continuing validity of all the New Deal and Great Society precedents.

Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I've heard thus far.)

In contrast, the individual mandate to purchase health insurance is not. It "is unprecedented in our jurisprudence." Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally-controlled market.

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.

At this stage in the debate, the only cited instance of Congress ever forcing people to buy particular products have come under the congressional exercise of the enumerated militia powers in Article I, section 8, clause 16, "To provide for organizing, arming, and disciplining, the Militia. . ." Here, the congressional power to mandate is provided in the text itself. Further, the original understanding of the militia was that the militiamen "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." United States v. Miller  (1939). The congressional power to provide for arming the militia straightforwardly includes the power to tell militiamen what kind of arms to bring to duty.

The federal militia powers come from the state militia powers, which (by enacting the Constitution) the People and the States chose to give (at least concurrently) to Congress. No one could possibly dispute that state militia powers included the power to require militiamen to bring certain types of arms to duty, and thus to require the purchase of such arms if necessary. The federal power to regulate commerce among the several states was likewise granted to Congress from the powers which were then possessed by the States and by the People. There was certainly no understanding in 1789 that state power to regulate interstate commerce (e.g., by inspecting goods at ports of entry) included the power to compel individuals to purchase goods in commerce.

So neither the Militia arming clause nor any cases provide precedent for the unprecedented mandate to purchase insurance. At best, the mandate is in a constitutional gray zone. To resolve the gray zone question, we are not limited to wondering whether to greatly extend some prior cases on the interstate commerce clause or the tax power. In addition, we can consider the structure of the Constitution itself.

As Jonathan Turley has written, allowing the individual mandate to stand "could amount to a ‘do not resuscitate' order for federalism." If judges find this argument (in the greatly elaborated form that will eventually be presented to the courts) to be persuasive, then the Supreme Court precedent is very clear. Several recent cases, including Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), City of Boerne v. Flores (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), and Nevada Dept. of Human Resources v. Hibbs (2003)  have demonstrated the Court's persistent determination to defend state sovereign immunity. Some of these cases involved the Eleventh Amendment, and some involved the Fourteenth (Cong. powers under sect. 5). In one case (Hibbs), the federal abrogation of sovereign immunity was upheld, partly because the federal law involved a state practice (sex discrimination) that was already unconstitutional.

These decisions have been heavily criticized by the academic Left, and the critics have pointed out that these decisions have much less to do with the constitutional text, or with original meaning of the text, than they do with the Court's broad view of constitutional structure: the essential nature of state sovereignty, and one of the attributes of sovereignty, namely sovereign immunity.

According to the Court, a Congressional statute making it easier for states to be sued for patent infringement is such a serious violation of federalism that it must be held unconstitutional. Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank (1999).  (Eugene Volokh's article on the case is here.) In terms of the practical harm to state sovereignty, the congressional law on patent suits is to Obamacare as a house cat is to lion.

The extensive line of recent cases on state sovereignty is complemented by the Ninth Amendment. The Ninth Amendment may be read to create a presumption of liberty. Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2005). Or it may be read as requirement that enumerated federal powers be narrowly construed so that they do not violate the retained natural rights of the people, including the people's right of self-government in the states. Kurt Lash,  The Lost History of the Ninth Amendment (2009).  Either reading raises further doubts about the constitutionality of the insurance mandate.

As the joint complaint of the 13 Attorneys General has argued, Obamacare constitutes an immense assault on federalism. If Obamacare is upheld, the states may be well on the way to becoming like the Roman Senate in 100 A.D.: formerly the an essential component of republican sovereignty, but now a hollowed remnant, possessing the forms of the old republic but really functioning as a mere puppet of the Leviathan.   

"[F]ederalism was the unique contribution of the Framers to political science and political theory," wrote Justice Kennedy. United States v. Lopez (1995) (concurring). To declare Obamacare to be unconstitutional, the Court may take into account the importance of preserving the unique contribution of Our Federalism. In doing so, the Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.

From federal district court to the Supreme Court, the judges and justices who decide to leave constitutional doctrine exactly as it is today will decline to validate the unprecedented exercise of power in Obamacare. The last fourteen years of the Supreme Court determination to defend our precious constitutional system of dual sovereignty gives reason to hope that the courts will apply the existing law rather than make up new law, and that the insurance mandate will be declared unconstitutional.

And then: Over two thousand pages of laws certainly contain items (e.g., restaurant menu labeling, tanning taxes) that theoretically could have been enacted separately from the mandate, and might be considered severable. But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.


Categories: Constitutional History, Constitutional Theory, Federalism, Fourteenth Amendment, Health Care, Militia, Taxes 318 Comments

Pretending that no law professors question Obamacare

David Kopel• April 1, 2010 7:05 pm

Back in 1989, National Public Radio reporter Nina Totenberg attempted to portray the individual rights view of the Second Amendment as a fringe position with no academic support. She claimed that the National Rifle Association had been unable to provide her with names of any professors who thought the Second Amendment was an individual right.

According to the NRA, Ms. Totenberg was lying, and the NRA had given her three names: Robert Cottrol of George Washington, Joseph Olson of Hamline, and Sanford Levinson of Texas. The latter, of course, was (and is) well-known as the co-author of a major constitutional law textbook, and had just published an article in the Yale Law Journal, titled "The Embarrassing Second Amendment," which stated that the arguments in favor of an individual right were very strong.

Indeed, the individual right arguments were so strong that when the Supreme Court finally got around to announcing a new Second Amendment decision, in District of Columbia v. Heller, all nine Justices readily agreed that the Second Amendment guarantees an individual right. There was a 5–4 split on the scope of the right, but all Justices recognized that the right belonged to individuals, not to states or to some "collective."

Earlier this week at the University of Washington Law School, a "debate" was held on the constitutionality of Obamacare. All four of the debaters said that the new law is unquestionably constitutional. According to moderator Hugh Spitzer, the reason that the "debate" featured only one side was that "we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional...But there are relatively few of them, and they are in great demand." The Center for American Progress touts this story as proof of the constitutionality of Obamacare, and the comments on the blog post are a self-congratulatory frenzy about the stupidity of anyone who doubts Obamacare.

Well, all I can say is that if I had some legal problem that required modestly diligent research, I sure wouldn't hire any of those Washington panel organizers.

My Cato Institute colleague Ilya Shapiro has just posted an offer to debate Obamacare anywhere, anytime. Besides working at Cato (where he edits the Cato Supreme Court Review, and helps manage Cato's extensive constitutional litigation program),  he is also an adjunct professor of law at George Washington University.

Like Sanford Levinson, Randy Barnett, of Georgetown Law School, is also the author of a constitutional law textbook; Barnett has commented extensively on the unconstitutionality of Obamacare. Cato's Roger Pilon has written many legal scholarly articles, and is an adjunct at Georgetown, although he teaches Government, so perhaps he does not count. Another law professor skeptic is Richard Epstein, of the University of Chicago. Lee A. Casey, who is co-counsel for the 13-Attorneys-General lawsuit, is currently in private practice, but has been an adjunct law professor at George Mason.

Michael McConnell (Stanford) wrote an op-ed in the Wall Street Journal challenging the constitutionality of the mandate.

Writing in USA Today, Jonathan Turley (George Washington) suggested that Obamacare is a flagrant violation of federalism and the Tenth Amendment.

Hypothesizing that Barnett, McConnell, and Epstein were asked to participate in the UW and declined because of schedule conflicts, and that Casey doesn't count because he is not currently teaching, Shapiro avers that he was never contacted.

As VC readers know, I also think that Obamacare is unconstitutional. The Wall Street Journal excerpted some of my blog post on March 25. I teach Advanced Constitutional Law at Denver University Sturm College of Law. My most extensive article on the interstate commerce power is Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban, 30 Connecticut Law Review 59 (1997). In that article, Glenn Reynolds (Law Professor, U. of Tenn.) and I argue that the post-Lopez interstate commerce power does not give Congress the power to regulate the particular technique that is used in abortions. [The plaintiffs in Gonzales v. Carhart did not raise this issue, but the concurrence by Justices Thomas and Scalia indicated that they might have voted against the federal ban, if the plaintiffs had raised the commerce clause.]  A fortiori, at least as Glenn and I see things, the interstate commerce power does not include the power to compel every American in buy a congressionally-designed product.

CBS News noticed the prediction by Ilya Somin (George Mason Law, VC) that the Court would probably uphold the mandate, but "such a law would be unconstitutional under the correct interpretation of the Commerce Clause -- or any interpretation that takes the constitutional text seriously." That view would have added some intellectual diversity to a debate.

Another law professor who has raised constitutional questions about Obamacare is Rob Natelson (U. Montana; also my colleague as a Senior Fellow at the Independence Institute). However, Rob is pretty busy getting ready to retire and to move to Colorado, so perhaps he was not available.

With a few minutes of searching on the web, I also found 

"It's definitely going way beyond anything Congress has ever attempted before," said Kris Kobach, a law professor at the University of Missouri-Kansas City and candidate for Kansas secretary of state. "There's a very solid argument here."


Bruce La Pierre, a constitutional law professor at Washington University [St. Louis, not UW], noted that the court majority in the Raich medical marijuana case was a delicate one and left "little reason to be sanguine that health-care legislation will survive attack under commerce clause." [La Pierre was not advocating for this position, just observing that it was entirely possible that the current Court would find that the mandate exceeds the interstate commerce power.]

I don't know if Kurt Lash (Loyola LA) thinks Obamacare is unconstitutional, but he does think that Akhil Amar's 14th Amendment argument in favor is incorrect.

Any VC readers who are law professors who think that Obamacare has constitutional problems and are willing to participate in a debate on the topic are welcome to identify themselves in the Comments below, or to email me. I will post the names of any volunteers. Professors need not take the firm position that the bill is definitely unconstitutional; professors who acknowledge that the bill raises serious and unresolved issues are also welcome.

Categories: Health Care 108 Comments


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