David Kopel • October 30, 2010 10:02 pm
Peruta v. San Diego is one of several cases challenging sheriff misapplication of California's concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California's statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have "good cause." Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.
Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:
I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A "reasonable" regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.
David Kopel • October 26, 2010 7:49 pm
Over at National Review Online, Ramesh Ponnuru notes a mailer from a group called "Americans United for Safe Streets." The mailer slams Republican House candidate Keith Fimian over the so-called "gun show loophole." Americans United for Safe Streets has a website, but other than providing an e-mail contact for a press spokesman, the site is quite opaque about what the organization really is, or who works there.
The explanation is simple. "Americans United for Safe Streets" is not a grassroots organization of united Americans. According to the Center for Responsive Politics, of the $502,000 which the group raised in 2008, $500,000 came from Michael Bloomberg.
By the way, there is no such thing as a "gun show loophole." The laws for selling guns at gun shows are exactly the same as for selling guns anywhere else. The gun show bill which Bloomberg has been pushing in the current Congress is loaded with provisions unrelated to background checks at gun shows–such as authorizing the federal government to create a central registry of sales by federally licensed dealers from those dealers' retail storefronts.
Categories: Guns, Politics 129 Comments
David Kopel • October 26, 2010 12:19 pm
My short essay for the Encyclopedia Britannica blog looks at the racist origins of marijuana prohibition. The essay is part of a two-day series of pro/con articles related to California's proposition 19.
Categories: War on Drugs 53 Comments
David Kopel • October 26, 2010 3:23 am
Glenn Beck often does great research and reporting on stories that the rest of the media fail to cover. His deconstruction of the Woodrow Wilson administration is long overdue. However, his reporting is sometimes inexcusably sloppy. All the more so considering that Beck, a television host on a major network, is not exactly bereft of research resources. Consider, for example, the ballot initiative in Portland, Maine, to allow legal resident on-citizens to vote in municipal elections.(See issue #4.) On the October 25 TV show, Beck incorrectly characterized the proposal as allowing illegal aliens to vote.
It took me just a few minutes of web searching to find the actual text of the Portland initiative. It was irresponsible, and a gross dereliction of journalistic duty, for Beck and his staff to smear Portland's reputation without having invested the minimal time to research the story properly.
It would have been even better if Beck, whose show often features good research on American history, to acknowledge that in the 18th and 19th centuries, many states and municipalities allowed voting by non-citizen immigrants. See, e.g., this report by the Center for Immigration Studies, an organization which favors much stronger policies against illegal immigration, as well as greater restrictions on legal immigration.
As a policy matter, I agree with the CIS in opposing state or local voting by legal resident non-citizens. But there's no excuse for Beck making the patently incorrect claim that Portland is considering an initiative to allow voting by illegal aliens. Every journalist, from the lowliest blogger to media superstars like Glenn Beck, should conscientiously strive for factual accuracy. Across the political spectrum, the media too often fall short of factual accuracy. Because Mr. Beck appears to sincerely believe in "restoring honor," and particularly because Mr. Beck often delivers his stories in a mode of high dudgeon, it would be better if he were especially scrupulous about factual accuracy.
Categories: Uncategorized 184 Comments
David Kopel • October 26, 2010 1:45 am
Mann Middle School in Colorado Springs has banned students from wearing rosaries as visible necklaces. School officials have offered two different rationales: some gang members wear rosaries as gang symbols; some Catholics are offended by the wearing of rosaries on the neck. A Colorado Springs Gazette editorial on the controversy quotes Eugene Volokh and David Kopel, and concludes that the ban is almost certainly a violation of the First Amendment.
Not that the constitutional question depends in the slightest on whether wearing rosaries is allowed by Catholic doctrine, but as the editorial notes, the Diocese of Colorado Springs confirms that such wearing is allowed. And St. Louis De Monfort, who is probably the most influential pro-rosary advocate of all time, included in his book The Secret of the Rosary some stories in which wearing the rosary, including as a necklace, was shown to be divinely approved.
Note also a similar case from Schenectady, N.Y.: after the American Center for Law and Justice filed suit, the federal district court for the northern district of New York entered a TRO ending the student's suspension for wearing a rosary. The school board repealed its rosary-wearing ban.
Categories: First Amendment, Religion and the Law, Religious Freedom 25 Comments
David Kopel • October 28, 2010 11:33 am
Just published at The New Ledger, an article describing the Democratic effort to label Ronald Reagan as an "extremist," during his 1966 campaign for Governor of California. Thanks to all the VC folks who responded to my bleg a few days ago, and provided good research leads.
Categories: Politics, Polls 8 Comments
David Kopel • October 18, 2010 6:24 pm A few weeks ago, I returned to my beloved University of Michigan, for a law school class reunion. This time, I stayed an extra day, in order to speak to law students at a lunchtime event on Monday, organized by the U of M Federalist Society. Michigan Prof. Richard Primus provided some thoughtful commentary on my presentation, and the FedSoc organization was outstanding. Anyway, the extra 36 hours on campus was a great opportunity to walk many miles revisiting the immense Michigan campus, the U of M's beautiful Arboretum, and Ann Arbor.
The campus visit reminded me of how much of the education I received at the University of Michigan took place outside the Law Quad–even though the quantity and quality of education received inside the Quad were excellent. My start as a journalist during law school was writing theater reviews, and then op-eds for the Michigan Daily. Unlike some Daily alumni, I've never won a Pulitzer Prize, but like all Daily writers, I benefited from the opportunity to work for a solid daily newspaper with a circulation of 18,000.
Other law school friends who got outside the Law Quad also had great experiences. One friend played interscholastic rugby. My 1L roommate found a small church in Ann Arbor, which at the time was holding services in a room at the YMCA. My roommate was a very studious fellow, even by law school standards, but the church drew him towards something more important. After serving as a JAG officer in the Air Force, he became an ordained minister.
Even if the university beyond the law school doesn't help you discern a vocation or avocation, you'll still find lots of theater, music, museums (including mini-exhibits in classroom buildings), guest lectures on topics other than law, and so on. Not to mention intramural and spectator sports.
Not every law school enjoys the good fortune of being located on a flagship research university campus with 41,000 students. But if your law school does share a campus with a university, it's almost certain that there's something there for you to enjoy. The law school experience can be all-consuming, especially during the first year. If you take the time to explore your university, you'll give yourself a helpful mental change of pace, and have some fun. And as the Grateful Dead put it in Box of Rain, "Maybe you'll find direction around some corner where it's been waiting to meet you."
Categories: Academia, Federalist Society, Uncategorized 6 Comments
David Kopel • October 17, 2010 4:04 pm Timothy Sandefur produces important research on economic liberty. I'm pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I'm also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I have followed his writing since he was a law student. And of course I commend Eugene for inviting him to guest-blog for VC. However, one item in his blogging appears to me to be erroneous:
When talking about "substantive due process," as I've been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.
Here is a good example: "the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution." Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol'y 1, 3 (2009). Now, whether one accepts or rejects the idea of "substantive due process," this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution's text.
The quote is not precisely accurate, and here, the lack of precision leads to a serious error. In the article that Sandefur cites, Nelson Lund and I were discussing and criticizing Roe v. Wade. After a quote from Roe about "the Fourteenth Amendment's concept of personal liberty," we then wrote: "This was presumably a reference to the doctrine of substantive due process, which the Supreme Court has never in its entire history tried to derive from the text of the Constitution."
Our statement as actually written was accurate. Sandefur supplies no example to counter our statement that "the doctrine of substantive due process" (that is, of selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on) has never been the beneficiary of a Supreme Court attempt to derive it from the text of the Constitution.
Instead of showing a case where the Supreme Court did what we had said it did not do (explicate a textual basis for "the doctrine of substantive due process"), Sandefur instead supplies two quotes from Supreme Court cases that did something else.
The first quote, from Loan Ass'n v. Topeka (1874) is little more than an asserted conclusion, albeit one I happen to think is correct. The block quote from Hurtado v. California (1884) provides a litany of things that are not "due process of law"; such as bills of attainder, or special laws enacted to favor or harm a particular individual or group. The Hurtado quote presents a common nineteenth century view of "due process of law," with, at least arguably, hundreds of years of roots in American legal understandings. Some of the background of this thinking can be found in Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009) and James W. Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 315 (1999). Both authors trace the "due process of law" concept from Magna Carta's "law of the land" provision, through Dr. Bonham's Case (voiding a local monopoly on the practice of medicine) and its explication by Edward Coke, and to its understanding by the American colonists. This understanding (which might have been incorrect as a matter of English law) was adopted by the American Framers, and carried forward by antebellum state courts.
So yes, "due process of law," in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of "due process of law," summarized in Hurtado, has very little to do with "the doctrine of substantive due process." The former, text-based view, condemns special legislation; yet you can't use the modern Supreme Court's "doctrine of substantive due process" to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the "due process of law" principle of Hurtado.
In short, Nelson and I did not voice any objection to the principle of "due process of law" as briefly explicated in Hurtado. Instead, we claimed that the Supreme Court's doctrine of substantive due process (which is much more wide-ranging and dubious) has not been derived by the Court from the text of the Constitution. Hypothetically, it might have been possible to so derive at least some of the modern SDP decisions, but I suggest that the absence of any Supreme Court citations from Sandefur rebutting what we actually said is further support for our point.
David Kopel • October 14, 2010 5:06 pm My comment on today's decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy's comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women's Forum.
The court entirely rejected the administration's claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.
While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward: the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was "unprecedented." Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.
The court's ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.
David Kopel • October 12, 2010 3:23 pm An official with Puerto Rico's Justice Department has announced that the Department will propose changes in the island's firearms laws, to bring them into line with Heller and McDonald. However, two of the proposed changes appear to be unconstitutional:
Torres said the measures will include a requirement that shooting ranges keep logs of how much ammunition their members use and cap the number of bullets each client can fire in target practice at 500 per year....
The House legislation under analysis would require gun clubs to maintain logs that include information relative to the quantity and caliber of the ammunition that shooters use onsite. It would revoke licenses from any such business that does not comply with the legislation....
The measure will also limit the quantity of weapons that a person can possess to take to a gun club.
The round-by-round registration requirement would be enormously burdensome to shooting ranges, and beyond the practical ability of many clubs to implement. The ban on target practice (beyond 500 rounds per year) is contrary to public safety; firearms owners should be encouraged to practice with their firearms, so that they will be more skilled in using them for self-defense, hunting, or any lawful purpose. While courses to achieve basic competence may only involve firing a few dozen rounds, more advanced courses, which might take several days, can easily exceed 500 rounds per person. Moreover, going the range on one's own once a month, and firing, say 100 rounds at each practice session, is a good way to improve one's abilities.
The First Amendment equivalent would be a limit on hour many hours a year a person could spend reading at a private library.
A similar issue is being litigated in Chicago, where a new law mandates that gun owners have safety training, including range time, but prohibits the operation of shooting ranges within the city–even though indoor ranges are well-established and safe throughout the rest of the nation, including in New York City.
I will be discussing the Puerto Rico proposal at 11:20 p.m. ET tonight on NRA News.
David Kopel • October 12, 2010 1:50 pm Granted this morning, Bond v. United States. Question presented: "Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment." The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant's constitutional argument.
The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peaceful use of a toxic substance. Defendant argues that her particular use (to try to injure her husband's mistress) was not within the reach of any enumerated congressional power.
Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.
A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, "absent the states or their officers, have no standing in this suit to raise any question under the amendment." Some lower courts have treated this as dicta but others have not. Whether or not it's dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned.
Categories: Standing, Tenth Amendment 55 Comments
David Kopel • October 8, 2010 5:18 pm Just published on the Daily Caller. Of course it's written for lay people, so most of the analysis will already be familiar to the legally-educated folks who read the VC.
David Kopel • October 8, 2010 4:34 pm Earlier this week, I wrote that NRA would be foolish obey the wishes of Republican activists who want the NRA to endorse only Republicans, and especially to not endorse endangered House Democrats. Here are some data on NRA endorsements, and some of the actions that dozens of House Democrats have taken to merit their endorsements:
NRA Senate endorsements in 2010: 23 Republicans, 2 Democrats.
NRA House endorsements in 2010: 197 Republicans and 61 Democrats.
There were 251 Congresspersons who signed the pro-Second Amendment incorporation congressional amicus brief in McDonald v. Chicago. Of the signers, 81 were House Democrats, and 19 were Senate Democrats, including Majority Leader Harry Reid.
A top NRA priority in Congress is H.R. 2296, to reform the Bureau of Alcohol, Tobacco, Firearms & Explosives. Of the 243 cosponsors, 76 are House Democrats.
Another NRA-favored bill is H.R. 442, the "Veterans' Heritage Firearms Act," would create an amnesty period to allow the registration of war trophies (e.g., an automatic rifle captured from the North Vietnamese Army) that were brought into the United States between 1934 and 1968. There are 211 cosponsors, 66 of whom are House Democrats.
The bill that would have the most significant practical effect for most gun owners is H.R. 197, the "National Right-to-Carry Reciprocity Act ." Sixty-five House Democrats are among the 209 cosponsors.
Early in the Obama administration, Attorney General Eric Holder said that the 1994 ban on so-called "assault weapons" and magazines holding more than 10 rounds, which sunset in 2004, should be re-enacted. Sixty-five Democratic Congressmen signed a letter to the Attorney General, opposing a new ban. In addition, Ike Skelton, the Missouri Democrat who chairs the Armed Services Committee, sent a separate letter to Speaker Pelosi and Majority Leader Hoyer expressing his opposition to the Attorney General's remarks. The show of Democratic opposition demonstrated that there was no chance that a ban could pass Congress. Since then, Attorney General Holder has not made any public statements in favor of gun bans.
As the numbers above illustrate, Democrats constitute an indispensible part of the pro-Second Amendment majority of the current Congress. Without the NRA's strong working relationship with so many Democrats, 2009-10 would have seen the enactment of destructive legislation for gun rights, rather than the constructive legislation which has become law.
David Kopel • October 6, 2010 2:32 pm No, I'm not talking about the Paraguayan political party. During much of the last two decades, various gun control advocates, Democratic partisans, and hard-rightists have claimed that the National Rifle Association of America was really just part of the Republican political machine. "NRA" really stood for "National Republican Association," they said.
Some typical examples of the claim: The 2006 book Foxes in the Henhouse: How the Republicans Stole the South and the Heartland and What the Democrats Must Do to Run ‘em Out, written by Democratic political strategists Steve Jarding, Dave "Mudcat" Saunders, and Bob Kerrey (p. 258 "The NRA–Now Republican Altogether," part of long attack on the NRA with numerous factual errors). From the head of the Pennsylvania AFL-CIO, approvingly quoted in The American Prospect. From the head of the Kentucky AFL-CIO. In a column on the Lew Rockwell website. From Handgun Control, Inc. (which later renamed itself "the Brady Campaign").
But this year, the NRA is endorsing Democrats all over the country. Ohio's major pro-Second Amendment organization is the Buckeye Firearms Association, and both BFA and NRA have endorsed Ohio Democratic Governor Ted Strickland for re-election. As they should, since he compiled a perfect voting record when he was in the U.S. House of Representatives, and as Governor, has taken a leadership role in protecting the right to arms and promoting the shooting sports. The Republican nominee, John Kasich, provided the crucial vote in 1994 that resulted in the enactment of the Clinton ban on so-called "assault weapons" (19 guns by name, 200 more by generic definition, and all magazines holding more than 10 rounds).
Likewise, many of the Blue Dog Democrats who hold the balance of the power in the current U.S. House of Representatives have perfect or near-perfect voting records, and have helped enact positive legislation–such as allowing firearms carry in National Parks under the same conditions that carry is allowed in the rest of a particular state, and changing the federal statute on switchblade knives so as to thwart the Obama administration's proposal to administratively ban the import of about 3/4 of folding knives.
So now, some Republican activists are furious that the NRA is endorsing Democrats. (The Sept. issue of The American Spectator covers the controversy, and includes some quotes from me.) Well, if you follow the advice of people who insist that the only candidates who can be endorsed are hard-right Republicans, then when you face (as in 2009) a Congress with an overwhelming Democratic majority, blocking anti-gun legislation will be extremely difficult, and passing constructive laws will be close to impossible.
From the very earliest days of the NRA, which was founded in 1871, the Association has understood that preservation of Second Amendment rights depends on broad support across the political spectrum. Shortly after Republican Ulysses Grant finished serving his second term as President of the United States of America in 1877, he was elected President of the National Rifle Association of America. In 1880, another Union hero of the Civil War, General Winfield Scott Hancock, became the Democratic nominee for President. Had he won the swing state of New York, he would have been inaugurated President of the USA in March 1881. Instead, in 1881 the NRA chose Hancock as its own President.
Civil liberties organizations which tie themselves exclusively to one party put liberty at risk. In a two-party system, it is inevitable that each party will dominate some of the time. Civil liberties are safer in the long run when they have friends in both parties, and when those friends know that civil liberty organizations will reciprocate their support, especially during tough elections.
David Kopel • September 28, 2010 6:19 pm That's the topic of my article in yesterday's edition of The New Ledger. Bottom line: in the Venn diagram, Republican gains and pro-Second Amendment gains sometimes overlap, but not always.
New Hampshire, West Virginia, Indiana, North Dakota are guaranteed gains for Second Amendment supporters, regardless of which party wins.
The most important races, from a right to arms viewpoint, are Connecticut, New York (Gillibrand), Pennsylvania, Ohio, Missouri, Colorado, Washington, and California.
A Democratic-controlled Senate in 2011 with a Majority Leader other than Harry Reid could well be more problematic for Second Amendment rights, even though the total number of pro-rights Senators would have increased.
David Kopel • September 18, 2010 1:34 pm Earlier this week, I was the subject of a false Tweet. It claimed, more or less: " Everybody's jaw in the room dropped when @davekopel said that Jay –Z is the most over-rated hip-hop artist. LOL." This way followed by a link, which (being in the typical TinyURL format) gave no clue as to its destination.
The destination was a website written in Japanese. It's probably true that at least some of the people who follow me on Twitter would be mildly curious about this alleged incident. However, very, very few of my Twitter followers can read Japanese. So the phony tweet was not a particularly well-crafted example of Twitter spam.
For the record, until I saw the aforesaid Tweet, I had never had an opinion on Jay-Z, never expressed an opinion on Jay-Z, and never possessed any basis of knowledge about whether his high rating among hip hop fans was deserved. However, this week I used my Zune to download Jay-Z's latest album, The Blueprint 3. I love how the Zune makes it possible to check out an entire album of unfamiliar material, at zero marginal cost. So yesterday I listened to the album, and thought it was pretty good. I don't particularly like hip hop, but even I could tell that Jay-Z is pretty talented.
David Kopel • September 18, 2010 1:22 pm This is a question raised by The Race to the Bottom, a DU Law School blog. Please discuss.
David Kopel • September 13, 2010 2:28 am Akbar Ganji is a journalist and one of Iran's leading political dissidents. His May 2009 speech to the University of Chicago Law School has recently been posted in the school's excellent podcast series. The speech delves deeply into different ways of understanding Islam, and Ganji offers some very liberal interpretations which, he says, have substantial support among the people of Iran, and some important Muslim clerics. It is a wonderfully refreshing alternative to the bleak views of some Westerners and all Islamists who contend that Islam is necessarily totalitarian. Well worth 88 minutes of your time.
Also worth a listen: This new episode of Bloggingheads.tv, featuring Abdullah Antepli (Muslim chaplain at Duke University) and Hussein Rashid (Religion Dispatches). Bottom line: the United States is the best country in the world for Muslims to live in, and today's America is the most Shariah-compliant nation–because Shariah properly understood is not a legal code (contrary to what the governments of Saudi Arabia or Pakistan claim). While I didn't agree with every single statement of the two speakers, their viewpoints were patriotic, honest, and constructive–a great alternative to the fifth columnists from CAIR and similar groups which the MSM too often present as representing "the" American Muslim viewpoint.
David Kopel • September 7, 2010 1:05 am As Orin wisely notes in the immediately preceding post, the typical law review article first footnote disclaimer "all errors are the author's alone" provides no useful information to the reader. Below are some alternatives which I have used:
"All errors are society's fault." 29 Hamline L. Rev. 520.
"Any errors are the fault of no-one in particular; rather, society itself is to blame." 68 Alb. L. Rev. 305.
"All errors are the authors' sole responsibility, but persons aggrieved by any such errors are encouraged to sue the companies which manufactured our computers." 34 Conn. L. Rev. 157.
"Any errors in this article are the fault of society, and cannot be blamed on an individual." 18 St. Louis U. Pub. L. Rev. 99.
"Errors are entirely the responsibility of sinister unknown forces, not the authors." 30 Conn. L. Rev. 59.
Feel free to use any of these, provided of course that you include a citation to the original source. :)
Orin's post may also be considered an oblique foreshadowing of the 2014 bestselling book: Barack Obama, My Autobiography, Part III: The Four Presidential Years, with the first footnote stating, "All my errors were because I did not listen to Cass Sunstein."
David Kopel • September 6, 2010 7:49 pm Ross Douthat pens another excellent column in yesterday's New York Times. He observes that "obsessing about the paranoia of the masses is often a way for American elites to gloss over their own, entirely nonsymbolic failures." For example, "Today, establishment liberals would much rather fret about the insanity of the Republican base than reckon with the unpopularity of Barack Obama's domestic program."
For a good example, see this recent episode of Bloggingheads.tv, featuring Michelle Goldberg (The Daily Beast) and Sally Steenland (Center for American Progress) talking each other into ever-higher levels of paranoia against the American people, based on gross misinterpretations of the Tea Party movement.
David Kopel • September 1, 2010 8:49 pm Ann Coulter's column today argues that Obama is not a Muslim; rather, he "is obviously an atheist." The gist of the argument is "The only evidence for Obama's Christianity is that he faithfully attended the Rev. Jeremiah Wright's Trinity United Church of Christ for 20 years....Attending Wright's church is the conscious, calculated decision to immerse yourself in hate-filled demagoguery and call it ‘Christianity.'"
I disagree with both the facts and the conclusion. Coulter is accurate in calling Jeremiah Wright "a racist nut." However, that does not prove that Wright (and by extension Obama, to whatever extent Obama believes in Wright's theology) is not a Christian. Some practitioners of "liberation theology" (including the black liberation theology variant) may simply be Marxists looking for some broadly-appealing rhetoric to add to their political program. Other practitioners, however, may be sincerely and otherwise-orthodox Christians who truly believe in both Christianity and Marxism, and in the liberation theology fusion of the two. For example, liberation theology was popular among many Catholics in Latin America from the late 1960s until 1984, when it was condemned by the Vatican's Congregation for the Doctrine of the Faith. I think it is implausible to believe that, pre-1984, the many Latin American bishops, priests, nuns, and Catholic lay people who embraced liberation theology were all closet atheists. It seems much more reasonable to conclude that at least some of them were orthodox Catholics who, until 1984, could consider liberation theology to be one legitimate way of expressing the Catholic faith.
Similarly, I would suggest that many of the pastors in slave states in antebellum America who taught that slavery was legitimate because of the slaves' inherent racial inferiority were also sincere Christians, albeit grossly mistaken in their teachings on this matter.
Ergo, belief in the racist, Marxist philosophy of black liberation theology is not necessarily incompatible with being a Christian who has orthodox beliefs on most matters of Christian doctrine (e.g., the trinity, the resurrection, virgin birth, and so on).
Second, the record of President Obama's Christianity is not limited to his record of attendance at Reverend Wright's nut-house. For example, this year, the President spoke at a prayer breakfast on Easter Sunday, on what the resurrection means to him personally. His remarks about "the Easter celebration of our risen Savior...and what lesson I take from Christ's sacrifice" were entirely straightforward statements of orthodox Christianity. I doubt that any normal Christian, of whatever denomination, could theologically disagree with a single word President Obama said.
David Kopel • September 1, 2010 5:47 pm A couple weeks ago, I blogged about an article in the Korea Times reporting that the Obama administration was blocking the import of American-made M1 Garands and M1 Carbines which the South Korean government wished to sell into the U.S. market. The Korea Times reported that an unnamed Korean official said that the American government was blocking the imports because of objections to increasing the gun supply in the United States. Some blog commenters speculated that the Korea Times was wrong, and that the real objection must have been that since the rifles were probably gifts from the United States government, the terms of the gift required that the rifles be given back to the U.S. Army once the Koreans did not want them any more.
Today, Maxim Lott's reporting for FoxNews confirms that the Korea Times accurately characterized the American government objections:
The Obama administration approved the sale of the American-made rifles last year. But it reversed course and banned the sale in March – a decision that went largely unnoticed at the time but that is now sparking opposition from gun rights advocates.
A State Department spokesman said the administration's decision was based on concerns that the guns could fall into the wrong hands.
"The transfer of such a large number of weapons -- 87,310 M1 Garands and 770,160 M1 Carbines -- could potentially be exploited by individuals seeking firearms for illicit purposes," the spokesman told FoxNews.com.
"We are working closely with our Korean allies and the U.S. Army in exploring alternative options to dispose of these firearms."
The article quotes the Brady Campaign's Dennis Henigan, and me, regarding the policy issues raised by the import ban.