Kopel Blog Archive March-April 2011

Dog Wars and the First Amendment

David Kopel• April 26, 2011 12:06 am

A new app for Google's Android phone is "Dog Wars." The player takes the role of a thug who trains a pit bull to fight. In Denver television Channel 7's coverage of the story, I explained that the First Amendment protects the right of the game producers to make and distribute the game, and also protects the right of people who criticize the game and attempt to convince Google not to distribute it. One part of the interview which didn't make the final cut was my observation that game promotes prejudice against American Staffordshire Terriers, by reinforcing the myth that so-called "pit bulls" are inherently vicious and dangerous.

Categories: First Amendment 70 Comments

Stun gun prohibition violates Second Amendment

David Kopel• April 22, 2011 6:49 pm

So rules a state judge in Bay City, Michigan. According to the ruling, the regulation of stun guns would be constitutional, but not their prohibition. Other than Michigan, the only states that prohibit stun guns are New Jersey and Rhode Island.

Eugene Volokh's Stanford Law Review article, Nonlethal Self-Defense examines the Second Amendment issues involving stun guns, chemical sprays, and the like, concluding that they are protected by the Second Amendment.

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Categories: Non-firearms Arms 36 Comments

Cert. Petition in Right to Carry Case

David Kopel• April 22, 2011 4:19 pm

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, "the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations."

Williams was peaceably transporting his handgun from his girlfriend's home to his own home. He has been convicted, and sentenced to a year in prison. The state's highest court, the Maryland Court of Appeals, rejected Williams' Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in "sensitive places") is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces "we meant what we already said."

As Halbrook points out, "When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one's house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,' the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .' United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don't even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.' Id."

Further, Heller's right to carry language is not dicta, according to McDonald: "our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." As Halbrook points out, this inescapably "implies a right to bear arms outside the home (even if not quite as ‘notably' as in the home)."

Williams had not applied for a permit, which would have been futile in light of Maryland's established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner's criminal conviction. Under this Court's precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though "Petitioners did not apply fora permit.").


even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625–26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication that kind of use sought by landowner would have been allowed, court did not require submission of "futile applications" with other agencies);

 Eugene Volokh's analysis of the Maryland ruling is here.

Categories: Constitutional Law, Guns, McDonald v. City of Chicago, Standing, Supreme Court 75 Comments

Interview with Cato's Ilya Shapiro on the legal challenges to the new federal health control law

David Kopel• April 20, 2011 6:18 pm

Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato's litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in the challenge to that law. The MP3 podcast is available here.

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Categories: Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Taxing and Spending Clause 0 Comments

Today in history: "Juden...waffen!"

David Kopel• April 19, 2011 1:19 pm

From my article Armed Resistance to the Holocaust, 19 J. on Firearms & Public Policy 144 (2007). (For Polish translation click here).

On January 18, 1943, the Germans rounded up seven thousand Jews and sent them to the extermination camp at Treblinka; they killed six hundred more Jews right in Warsaw. But on that day, an uprising began. In the beginning, the Jewish Fighting Organization had about 600 volunteers; the Jewish Military Association had about 400, and there were thousands more in spontaneous small groups. The Jews had only ten handguns, but the Germans did not realize how under-armed the Jewish fighters were.
After four days of fighting, the Germans on January 21 pulled back from the ghetto, to organize better. Another diary written in the Warsaw ghetto exulted:

In the four days of fighting we had made up for the same of Jewish passivity in the first extermination action of July, 1942. Not only the Germans were shocked by the unexpected resistance, Jews too were astonished. They could not imagine until then that the beaten, exhausted victims could rise against a mighty enemy who had conquered all of Europe. Many Jews who were in the streets of Warsaw during the fighting refused to believe that on Zamenhof and Mila Streets Jewish boys and girls had attacked Germans. The large-scale fighting which followed convinced all that it was possible.

On February 16, 1943, Heinrich Himmler ordered that the Warsaw ghetto be exterminated on April 19. The plan was to give Hitler a Judenrein Warsaw as a present for his April 20 birthday.

On that night of April 19, the Warsaw Jews partook of the Passover Seder. Since September 1939, they had eaten the bitter herbs of slavery. Now, they were drinking the wine of freedom.

The Nazi Minister of Propaganda, Joseph Goebbels, wrote in his diary, "the joke cannot last much longer, but it shows what the Jews are capable of when they have arms in their hands." The Nazis brought in tanks. The Jews were ready with explosives. First one tank and then a second were immobilized in the middle of the street, in flames, their crews burned alive. [Uprising leader Emanuel] Ringelblum recalled:

Now the fighters as well as the non-combatant Jews who have crawled out of their hiding places have reached the pinnacle of jubilation….According to one eyewitness account, "The faces who only yesterday reflected terror and despair now shone with an unusual joy which is difficult to describe. This was a joy free from all personal motives, a joy imbued with the pride that that ghetto was fighting."

Another eyewitness describes the confusion in the German ranks: "There runs a German soldier shrieking like an insane one, the helmet on his head on fire. Another one shouts madly ‘Juden…Waffen…Juden… Waffen!'" [Jews…weapons!]

(For a 2001 essay that Glenn Reynolds and I wrote on Jewish resistance at Warsaw and elsewhere, click here.)


Categories: Guns, History 118 Comments

National Firearms Law Seminar

David Kopel• April 19, 2011 2:17 am

Every year at the NRA Convention, the NRA Foundation puts on a day-long National Firearms Law Seminar. For attorneys in search of Continuing Legal Education that is actually interesting–or who are just in search of knowledge–the Seminar presents a nice balance of cutting-edge law, along with helpful advice for legal practice. This year's panelists include Stephen Halbrook, David Hardy,  and me (on international law), as well as Pennsylvania Supreme Court Justice Seamus McCaffery, and legal experts from the FBI and BATFE. The luncheon speaker will be Glenn Reynolds, who may also be mixing his well-known margaritas at the cocktail reception afterwards. So if you will be in Pittsburgh on April 29, please consider registering.

Categories: Continuing Legal Education 6 Comments

The Libyan intervention is not wholly legal

David Kopel• April 19, 2011 1:31 am

That's my argument in a new article for The Daily Caller. As I've previously explained, I strongly support the use of force against the Gaddafi tyranny. Indeed, I wish that President Obama were not so half-hearted in taking action to remove Gaddafi. However, the war against the Libyan dictator still needs to be voted on by Congress, just as President Jefferson asked Congress for permission regarding the First Barbary War.

Categories: Constitutional Law, International Law 147 Comments

Rep. Harold Volkmer, R.I.P.

David Kopel• April 18, 2011 5:29 pm

There have been thousands of men and women who have been elected to the United States Congress, but only a few of them can be remembered for leading the enactment of major reforms to safeguard constitutional rights. Among these giants are Rep. John Bingham and Sen. Jacob Howard, the lead sponsors of the 14th Amendment (making the Bill of Rights applicable to the states) in the House and Senate. The sponsors of the Civil Rights Act of 1964 (using federal powers to stop state and local violations of the Equal Protection clause) are in the same category. So was Missouri Democrat Harold Volkmer, who passed away on April 16, one of the greatest of America's Second Amendment heroes.

Born in 1931, Volkmer got his start in politics helping his mother campaign in Jefferson City, Missouri, for the re-election of President Franklin Roosevelt. Having passed the bar exam even before he graduated from the University of Missouri Law School, Volkmer quickly entered public service, first as an Assistant Attorney General for the State, and then in the United States Army. He was elected Prosecuting Attorney for Marion County in 1960, and then State Representative in 1966. During his ten years in the Missouri legislature, he earned the same reputation that he would have in Congress. An "energetic blunt-talking lawyer" and "a maverick," in the words of the St. Louis Post-Dispatch. Volkmer led the way on a major reorganization of the executive branch of state government. As the Republican minority leader later recalled, "Volkmer was the brains for all of us. He understood the issue of reorganization better than anybody in the Legislature. We all looked to him for leadership, including me. I don't like to say that, darn it, because he's a Democrat. But it's true."

Volkmer also sponsored Missouri's open meetings law, protection for the secret ballot, the modern version of the Missouri tax code, and the then-new food stamp program.

He won the first of his ten terms as a United States Representative in 1976. During 20 years in Congress, Volkmer accomplished much, but his greatest work was the McClure-Volkmer bill, formally known as the Firearms Owner's Protection Act (FOPA).

The federal Gun Control Act of 1968 set up a comprehensive system of national gun laws; to implement the law, the Bureau of Alcohol, Tobacco and Firearms was created in the Treasury Department. (Previously, the Bureau had been a Treasury "Division.") Republican Richard Nixon became President in 1969, and the BATF's enforcement of the Gun Control Act was consistent with Nixon's loathing of guns. As Nixon later told William Safire (a New York Times columnist who had once been a Nixon speechwriter), "Guns are an abomination," and handguns should be outlawed. Under Nixon, BATF routinely and persistently engaged in extreme abuses–including entrapment (such as telling a particular gun dealer that something was legal, and then arresting him for doing it); confiscation, forfeiture, and destruction of firearms belonging to law-abiding gun owners and dealers; and a prosecution strategy aimed at technical violations rather than at genuine criminals.

The problems were exacerbated by a top-level culture of mismanagement and employee abuse at BATF, as documented by the National Association of Treasury Agents, an employee-rights organization for law enforcement officers within the Treasury Department. (Today, the organization is named the National Association of Federal Agents, since much of Treasury law enforcement was moved to the Department of Justice in 2003.) BATF management tended to reward the agents who were most aggressive against easy targets (entrapment victims, and so on), and to punish agents who tried to focus on interstate criminal gun smuggling and other activities of gun criminals.

Reform was plainly needed, and so the Firearms Owner's Protection Act was introduced in Congress. In the House, Democrat Volkmer was the lead sponsor, while the Senate sponsor was Republican James McClure of Idaho. (McClure passed away this February.)

Initially, FOPA was bottled up. House Judiciary Chairman Peter Rodino, a zealous anti-gun advocate, refused to allow any hearings. Even after Republicans took the U.S. Senate in the 1980 elections, Majority Leader Howard Baker did not bring FOPA to the floor. But at least the FOPA sponsors could get committee hearings. One of the most important of these was before the Senate Judiciary Committee's Subcommittee on the Constitution. The 7-member subcommittee unanimously concluded that BATF was habitually engaging in "conduct which borders on the criminal. . . [E]nforcement tactics made possible by current firearms laws are constitutionally, legally and practically reprehensible. . . . [A]pproximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations."

The 75% figure came from Vernon Acree, a former United States Commissioner of Customs, who had been hired by the NRA to conduct a study of BATF prosecutions in Virginia and Maryland. As for BATF's denials, the Subcommittee found:

The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. Richard Davis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau's priorities were aimed at prosecuting willful violators, particularly felons illegally in possession, and at confiscating only guns actually likely to be used in crime. He also asserted that the Bureau has recently made great strides toward achieving these priorities. No documentation was offered for either of these assertions. In hearings before BATF's Appropriations Subcommittee, however, expert evidence was submitted establishing that approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations. (In one case, in fact, the individual was being prosecuted for an act which the Bureau's acting director had stated was perfectly lawful.) In those hearings, moreover, BATF conceded that in fact (1) only 9.8 percent of their firearm arrests were brought on felons in illicit possession charges; (2) the average value of guns seized was $116, whereas BATF had claimed that "crime guns" were priced at less than half that figure; (3) in the months following the announcement of their new "priorities", the percentage of gun prosecutions aimed at felons had in fact fallen by a third, and the value of confiscated guns had risen. All this indicates that the Bureau's vague claims, both of focus upon gun-using criminals and of recent reforms, are empty words.

Senate Committee on the Judiciary, Subcommittee on the Constitution, The Right to Keep and Bear Arms, 97th Congress, 2d sess., Senate Doc. 2807 (February 1982).

Finally, in 1985 a Senate vote was allowed on FOPA, and it passed 79–15. Democrats voted 30–13 in favor, with "ayes" coming from Senators such as Joe Biden, George Mitchell, John Glenn, and Al Gore.

But things looked much worse in the House. Judiciary Chairman Peter Rodino declared FOPA "dead on arrival" in House. The crime subcommittee, which had jurisdiction over FOPA, was headed by William Hughes (D-N.J.), a staunch and effective anti-gun advocate. Both the Crime Subcommittee and the Judiciary Committee  had long been carefully screened to keep off almost all Democrats who supported the Second Amendment. And even if FOPA somehow made it out of Judiciary, there would only be a vote on the floor of the House if the Rules Committee allowed one, and the Rules Committee would never defy House Speaker Tip O'Neill (D-Mass.), who had a perfect anti-gun voting record.

What came next would be Harold Volkmer's finest hour. The one way that Volkmer could free the McClure-Volkmer bill from the committees was to convince at least half the members of the House of Representatives (218 of 435 members) to sign a discharge petition. Attempts to win a discharge petition almost never succeed. At the time, a Representative's signature would be kept secret until there were 218 signers, but once the signers were revealed, the House leadership would know who had defied their wishes. Volkmer had to convince dozens and dozens of his fellow Democrats to stick their necks out on behalf of Second Amendment rights. Volkmer also had to win over Republicans to support his bill, a skill which he had already mastered in Missouri, and which he used well in Washington.

Volkmer succeeded. By early 1986, it was clear the Volkmer was getting close to victory. Key to his success were not only his political talents, but also his deep and thorough understanding of the bill. He didn't have to pass the bill to find out what in it; he knew the bill inside-out, and what each sentence of the bill meant for fixing particular, documented problems in gun law enforcement. As a result, he could readily rebut BATF and gun prohibition lobbyists who tried to convince wavering Representatives that FOPA was unnecessary or dangerous.

Unable to stop Volkmer, Judiciary Chairman Rodino tried to head off the discharge petition by voting out an alternative bill by Rep. Hughes, which made from tepid reforms, and which also substantially expanded federal gun control. Speaker O'Neill promptly brought the Rodino-Hughes bill to the House floor for a vote. The debates took place on April 9–10, 1986. Volkmer led the charge against Rodino-Hughes. He won a motion to strike the entire bill below the enacting clause, and to substitute the language of FOPA.

While the vote on motion to strike was fairly close, the final passage of FOPA turned into a rout. FOPA passed the House 292–130; House Democrats voted 131 in favor and 115 opposed. On May 19, 1986, President Reagan's signature made McClure-Volkmer the law of the land.

FOPA begins by declaring "The Congress finds that -- (1) the rights of citizens (A) to keep and bear arms under the second amendment to the United States Constitution; (B) to security against illegal and unreasonable searches and seizures under the fourth amendment; (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies." Pub.L. 99–308, sec. 1(b). 

Line by line, FOPA significantly strengthened statutory protections of the Second, Fourth, Fifth, Ninth, and Tenth Amendments. FOPA remains one of the most far-reaching laws ever enacted by Congress to safeguard constitutional rights.

Arizona attorney David Hardy worked closely with Rep. Volkmer, Sen. McClure, and the National Rifle Association in the drafting and passage of FOPA. Last week Hardy unveiled a new website which provides the full legislative history of FOPA. As reflected by citations in the U.S. Supreme Court and the federal circuits, Hardy is clearly the nation's leading scholar of FOPA.

For the next 10 years, Harold Volkmer continued to play a leading role in Congress defending Second Amendment rights, and in fighting against the increasingly powerful alliance of gun prohibition groups with the Clinton White House.

Harold Volkmer's devotion to the Bill of Rights was not a political expedient; it was the cause to which he dedicated his life. After he left Congress, the members of the National Rifle Association overwhelmingly elected him to their Board of Directors, on which he served for the next 12 years. There, he provided the NRA with sound and canny advice on legislative matters. 

While still a member of Congress, Volkmer became a member of the Board of Trustees of the NRA Civil Rights Defense Fund, and was for many years the chair of the organization. Even after his chairmanship, he continued to serve as a Trustee, and while on his deathbed last week, he was busy studying and making recommendations on case proposals that had been submitted to the Fund for consideration.

Missouri Democratic Senator Thomas Eagleton nicknamed Harold Volkmer "The Roadrunner" for how much Volkmer got done every day.  Very true, but even this understates what Volkmer accomplished. Over a lifetime devoted to good government and civil rights, Harold Volkmer fought the good fight, finished the race, and kept the faith.

One day perhaps, there will be a stone monument honoring Harold Volkmer. But the true monument to Harold Volkmer has already been standing for a quarter-century, and it is found all over the United States–in the homes of law-abiding firearms owners and in firearms stores where the Second Amendment and the rest of the Bill of Rights are freely exercised, uninfringed by the abuses and usurpations which Harold Volkmer put to an end. Harold Volkmer truly was a Hero of the Constitution.


Categories: Guns, History, Uncategorized 25 Comments

Federal activities allowed in case of a government shutdown

David Kopel• April 8, 2011 1:10 am

The Constitution declares that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." (Article I, Section 9, Clause 7.) As James Madison explained in Federalist 58, our Constitution is based on the principle that strict controls on spending are necessary to prevent abuses of power. Hence, federal money can only be spent after Congress enacts a bill ordering the spending, and after the President signs the appropriation bill, or Congress votes to override a veto.

Several federal statutes, collectively known as "The Antideficiency Act," provide additional safeguards. 31 U.S.C. secs. 1341–42 & 1511–17. The original version of the Act dates back to 1820. Act of May 1, 1820, ch. 52, sect.6, 3 Stat. 567, 568. The current Act makes it a crime for a federal employee to pay out money without prior Congressional authorization.

In 1990, Congress amended the Antideficiency Act:

An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. This section does not apply to a corporation getting amounts to make loans (except paid in capital amounts) without legal liability of the United States Government. As used in this section, the term "emergencies involving the safety of human life or the protection of property" does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.

31 U.S.C. 1432. See also 31 U.S.C. 1515(b) ("an emergency involving the safety of human life, the protection of property, or the immediate welfare of individuals."). The exception does not mean that the federal government may pay for the services, but it does mean that the federal government may incur an obligation to pay for these services later. Attorney General Opinion, August 16, 1995 (Asst. A.G. Walter Dellinger).

According to a continuing legal education document by Kenneth Allen, (FAFL GLASS-CLE 6–1, Federal Publications LLC, available on Westlaw), the following activities may continue even in the absence of an appropriation. First two items which are not part of the 1342 exception: "National security activities," and contracts payments from available funds. And under section 1342: "Medical care of inpatients and emergency outpatient care," "Activities essential to ensuring continued public health and safety, including safe use of food, drugs, and hazardous materials," "Border and coastal protection and surveillance," "Protection of federal lands, buildings, waterways, equipment, and other government property," "Care of prisoners and other persons in the custody of the United States," "Law enforcement and criminal investigations," "Emergency and disaster assistance," "Activities essential to the preservation of the essential elements of the money and banking system of the United States, including borrowing and tax collection activities of the Treasury," "Activities that ensure production of power and maintenance of the power distribution system," and "Activities necessary to maintain government-owned research property."

 I am not an expert on the Antideficiency Act, but I hope that the above provides a starting point in considering what federal activities might continue in the absence of a continuing resolution. Commenters with expertise are welcome to supply clarifications and corrections.

Categories: Uncategorized 90 Comments

Wisconsin election results

David Kopel• April 5, 2011 10:09 pm

After some looking around, I've settled on the Milwaukee Journal-Sentinel, and @daveweigel to follow for tonight's Wisconsin Supreme Court election results. With 17% of precincts reporting, Prosser and Kloppenburg each have 50%.

Folks interested in Justice Prosser's record on right to arms issues can find some information in my article, The Licensing of Concealed Handguns for Lawful Protection: Support from Five State Supreme Courts, 68 Albany Law Review 305 (2005) (analyzes recent decisions in New Mexico, Missouri, Ohio, Wisconsin, and Rhode Island) (short answer: according to Prosser's majority opinion, the Wisc. RKBA includes the right to unlicensed concealed carry in one's home or business, but not automobile).

UPDATE: For those folks who follow out-of-state judicial election returns via the Internet, this has been quite an exciting night. Lots of lead changes. At various points, each candidate had a substantial lead, and then the race reverted to 50/50. That's the situation now, with 95% in, and Prosser coming from behind to open up a 6,000 vote lead, which just fell to a lead of fewer than 2,000.

MORE: Two lead changes within a minute. First Kloppenburg up by 1,500; now Prosser up by 4,500, then lead falls to 2,500 two minutes later. 97% in. Greatest Wisconsin state supreme court election night ever for non-Wisconsinites!

Categories: Elections, Guns 184 Comments

Standing up for George McGovern

David Kopel• April 5, 2011 12:08 am

The Denver Post reports on the time that Chris Romer (current frontrunner in the Denver mayoral race) and I took a lonely stand in support of George McGovern's doomed 1972 presidential campaign, during a classroom debate. As the article indicates, I have no regrets about doing whatever I could, including working as a phone bank volunteer, to help McGovern. November 7, 1972, was definitely the most personally depressing presidential election night I've ever experienced, with McGovern even losing states like South Dakota and Rhode Island, for which we had still retained some hope; the good news that night was my father's re-election to another term in the Colorado House of Representatives. (For an old-time picture of my dad in the House, see the 3d picture from the end, here.)

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Categories: History 115 Comments

The "San Francisco Democrats" meme

David Kopel• April 4, 2011 12:57 am

These days, there are innumerable books and articles which will tell you that at the 1984 Republican Convention, "San Francisco Democrats" were denounced, and that the term was understood by everyone as an attack on homosexuals. This is at most only a partial truth.

Suppose that in 2012, after the Republican Convention, a Democrat denounced the Republican Convention as consisting of "Sarah Palin Republicans." The denunciation would bring to mind a wide variety of issues and themes. Now suppose that in 2040, a historian told you that the denunciation of "Sarah Palin Republicans" was understood by everyone as a criticism of the hunting of wolves. For some animal rights activists, Governor Palin's greatest sin is allowing aerial wolf hunting. These activists, when they heard the phrase "Sarah Palin Republicans," might immediately think of wolf hunting. But most people–including the audience of anti-Palin swing voters to whom the 2012 speaker was appealing–would not think first of wolves. Even if wolf hunting might happen to be among the dozens of things they loathed about Sarah Palin.

Similarly, in 1984, the term "San Francisco Democrats" raised numerous issues which were far more important to swing voters than were gay rights; this was especially so for the target audience–the voters who would become known as Reagan Democrats.

Beginning in the late 1960s, there had been an intense struggle within the Democratic party. On the one side were the heirs of Harry Truman and John F. Kennedy. They strongly believed in a powerful and affirmative federal government, and they were hawkish and staunchly anti-communist. This was the traditional party of Big Labor, the big city mayors, and the Democratic machine. Challenging them, as insurgents, were dovish anti-war activists, women's rights advocates, and others on the cultural left. The overwhelming issue in the divide was the Vietnam War. The challengers fell short in 1968, when Vice President Hubert H. Humphrey defeated the Minnesota poet and Senator Eugene McCarthy.  Humphrey narrowly lost to former Vice President Richard Nixon in the general election.

1n 1972, George McGovern out-organized everyone else, and ran a brilliant insurgent campaign which captured the nomination. He defeated candidates from the traditional wing of the party, such as Humphrey and the very hawkish Washington Senator Henry "Scoop" Jackson. McGovern's insurgency became the textbook model of how to beat the party establishment, and was closely studied by Jimmy Carter. But in the general election, McGovern lost to incumbent Richard Nixon 61–38, carrying only Massachusetts and the District of Columbia.

The Democratic party swiftly retreated from what it saw as the unappealing (to swing voters) excesses of McGovernism. McGovern's party chair, Jean Westwood (the first female to lead the Democratic National Committee) was removed at the first opportunity. In 1976, the party nominated a southern governor, Jimmy Carter of Georgia, who at the time had the impressive skill of convincing liberals that he was a liberal, moderates that he was moderate, and conservatives that he was conservative.

Carter was defeated by Ronald Reagan in 1980, and then in 1984, his Vice President, Walter Mondale, won the Democratic nomination, at a convention held in San Francisco. Mondale had a long and solid track record with the entire Democratic base. Organized labor and the big-city mayors loved him; the civil rights groups knew him as a long-time champion. Women's groups had by then become a core part of the Democratic establishment, and were strongly behind Mondale. By voting record, he had been the most liberal United States Senator, and so he was a broadly acceptable choice to the San Francisco Democratic Convention, including to the delegates who had supported his main challengers, Gary Hart and Jesse Jackson. The Democratic divisions over Vietnam were over; since the 1960s, the party's center of gravity on foreign policy had moved substantially to the left, and so had Mondale. 

The Democrats were quite conscious of avoiding the appearance of McGovernism, so when Mondale delivered his acceptance speech, the hall and the delegates were bedecked in red, white, and blue–a change from previous conventions, in which there had not been such attention to patriotic appearance.

 Among the purposes of the Republican Convention was to divide the Democratic base. And so for the keynote address, the Republicans chose Jeanne Kirkpatrick. Formerly a Georgetown professor, she had worked closely with Hubert Humphrey and Scoop Jackson. She described herself as an "an AFL-CIO Democrat." As an increasingly influential public intellectual in the 1970s, she criticized not only what she saw as President Jimmy Carter's soft and naive stance on communism, but also the Nixon-Ford-Kissinger "detente" policy of accommodating to the Soviets as a rising power.

Ronald Reagan brought Kirkpatrick into his campaign, as he did with many Democratic hawks who were dismayed with Carter's foreign policy and the dovish position of mainstream Democrats. (Reagan almost won the endorsement of Dem. Senator Scoop Jackson, although Jackson ultimately demurred because he could not accept Reagan's hard line on states' rights.) In 1981, Kirkpatrick, remaining a Democrat, became Reagan's Ambassador to the United Nations.

And so for the first time since 1952, the 1984 Republican National Convention chose a keynote speaker who was not a Republican. Kirkpatrick delivered a blistering speech, dealing exclusively with foreign policy. She ran through a litany of recent foreign policy controversies: Grenada, Lebanon, the Soviet walk-out from arms negotiations, and Central America. On every topic, said Kirkpatrick, the Democrats "always blame America first." For example: "When Marxist dictators shoot their way into power in Central America, the San Francisco Democrats don't blame the guerrillas and their Soviet allies. They blame United States policies of one hundred years ago. But then they always blame America first."

As Kirkpatrick made clear, it was not all Democrats she was criticizing; she reminded the audience that she was still a Democrat. Rather, her point was that the 1984 Mondale Democrats were not Hubert Humphrey Democrats, or Scoop Jackson Democrats. San Francisco Democrats were McGovern Democrats.

The 1984 Republican keynote was a speech entirely about foreign policy, delivered by a speaker who was known to the public exclusively for foreign policy, and whose obvious appeal was to national security Democrats.

Was the "San Francisco Democrats" line a dog whistle to people concerned about culture wars? One could make the argument, and perhaps there's no way to be sure. But even if it were a dog whistle, it was, by definition, something recognized only by a subset of already-committed Republican activists who were especially keen on the culture war. Jeanne Kirkpatrick was not picked to deliver the keynote in order to rev up hardcore religious conservatives; they were not her people, and the religious conservatives had already been addressed by several other speakers at the convention. Kirkpatrick's people were AFL-CIO Democrats who were terrified that if the American President did not understand the mortal danger of the Soviet threat, then nothing else mattered. Many of those voters had deserted McGovern in 1972, voted for Carter in 1976 (when Carter ran, in some respects, as more anti-communist than Gerald Ford), and abandoned Carter in 1980. The Kirkpatrick speech aimed to keep those Democratic voters on Reagan's side in 1984–however much they might disagree with him on economic or cultural issues.

To describe the "San Francisco Democrats" line as mainly about gay rights or culture wars is akin to claiming that the central issue in King Lear is tax policy–as if "I tax not you, you elements, with unkindness," were a complaint about unkind taxes, and the King's central concern were just taxation. In 1984, there were some people who worried that homosexuals were the greatest threat to America, but there were many tens of millions more who worried the aggressive totalitarian Soviet slave empire was the greatest threat. It was to these voters, including Democrats and independents, that the Republican keynote appealed, and this was the appeal that helped Ronald Reagan win re-election with 49 states and 59% of the popular vote–a Democratic defeat exceeded only by George McGovern in 1972.

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Categories: Communism, History 228 Comments

Health insurance is not ‘commerce'

David Kopel• March 30, 2011 6:25 pm

From 1789 until 1944, the Supreme Court adhered to the original understanding of the Constitution that insurance is not "commerce" that is subject to the congressional power to regulate interstate commerce. A 1944 opinion by Justice Black, Southeastern Underwriters, reversed that approach, while claiming to base its opinion on original understanding. In an article in the National Law Journal, Rob Natelson and I argue that the Southeastern Underwriters should be over-ruled.

Categories: Commerce Clause, Health Care 128 Comments

Colombian firearms policy bleg

David Kopel• March 25, 2011 6:48 pm

One of my research interns is writing a paper on firearms law in Colombia. He has done an excellent translation of the statutes, and of analyzing the treatment of arms in the current and previous Colombian constitutions. But one issue that remains difficult is finding out about the actual operation of Colombia firearms laws. How are they actually applied in practice? By analogy, if you read the Mexican Constitution and firearms control statute, you wouldn't know that there is only one legal gun store in the entire nation of Mexico, or that the government is generally reluctant to license calibers other than .22, even though the statute authorizes most calibers under .38.

So I am appealing for assistance for commentators who have knowledge of the actual situation for law-abiding Colombian gun owners. If they comply with the statute, will they be issued a license within a reasonable time, or will they have to pay a bribe? Does this vary by region? And any other practical information that informed people can supply.

Categories: Guns 17 Comments

University of Colorado Opera's "Susannah"

David Kopel• March 18, 2011 7:22 pm

Can you name the two most-performed American operas? What if I give you the hint that Porgy & Bess is number one? In second place, but much less-known, is Susannah, by Carlisle Floyd. Last week, the University of Colorado produced a solid performance of Susannah, as part of CU Opera's all-American schedule this season.

Susannah is based on a story from the Bible's Book of Daniel. Two elders falsely accuse a pair of young people, Susanna and Joakim, of premarital sex, and the pair are sentenced to death. But Daniel saves the day, by separately cross-examining the two alleged witnesses about where they claim the assignation took place. One says "Under a mastic tree," and the other says "Under an evergreen oak." Perjury proven, the two elders are executed, while Susanna and Joakim are freed.

The Susanna story is part of the Apocryphal, or Deuterocanonical (second canon), books that were written in the intertestmental period, between the close of the Old Testament and the first books of the New Testament. Jews and Protestants do not consider these books canonical, but Susanna (which is appended to the canonical Book of Daniel as chapter 13), is included in the Catholic, Greek, and Slavonic Bibles.

Carlisle Floyd transplants the story to a small town in a rural Tennessee valley. At a town dance, Susannah's high spirits annoy the wives of the church elders. With a new preacher arriving in town, the church elders head down to the river to find a good spot for baptisms, and find Susannah bathing naked. Scandalized, they coerce her slightly retarded male friend, Little Bat, into "admitting" that Susannah seduced him. Things do no turn out nearly so well for the operatic Susannah as they did for the biblical Susanna.

The lyrics are in the idiom of the early-mid 20th century rural South: "I danced and danced ‘till I was plumb wore out." Vocally, Susannah is a difficult opera. The cast of college students met the challenge, although one could see that it wasn't easy. Emily Martin as Susannah sparkled, taking the audience on a journey from naïve happiness to exhausted despair to nihilistic revenge.

As Susannah's good-hearted but irresponsibly drunken brother Sam, John Robert Lindsey and his powerful voice were never overwhelmed by the gorgeous music from the orchestra--a problem sometimes not surmounted by other singers. Lindsey also has the most impressively sculpted biceps that one may ever see on an opera stage, which almost forces one to construct a back story of Sam doing pushups all day when he's not out hunting or drinking.

Susannah's male friend Little Bat (James Baumgardner) matched his voice to his demeanor, believably remaining loyal to Susannah even after his false accusation. Wei Wu, as minister Olin Blitch, did not fully embody the emotional energy of revival preaching, but his later scenes at Susannah's cabin--where he seduces her and then repents--were poignant.

Fortunately, CU Opera chose to perform Susannah in the period and costumes for which it was written, rather than following the trend of some companies to get their costume ideas from Lady Gaga and their set design from Tron. Peter Dean Beck's set and lighting supplemented the performances without being intrusive; the twinkling stars and Sam's cabin were especially good. 

Susannah is entirely negative in its portrayal of the townfolk, and in that sense, unrealistic. But dystopian visions of American small towns are a tradition among American artists, as in Sherwood Anderson's 1919 collection of short stories, Winesburg, Ohio.

Written in 1954, Susannah evokes its period's fear of McCarthyism and false charges, as both Stage Director Leigh Holman and Music Director Nicholas Carthy wrote in the program notes.

Joe McCarthy and his reckless, unsubstantiated charges certainly gave anti-Communism a bad name in the history books. Which is too bad, because there really were American Communists working to turn the United States into a Soviet-style tyranny. Among them was Dalton Trumbo, who attended the University of Colorado for two years before becoming a Hollywood screenwriter, and writing novels and screenplays that always followed Joe Stalin's political line (anti-war until Hitler attacked Stalin, then militantly pro-war).

As a Communist Party member, Trumbo was brought before the House Un-American Activities Committee, and eventually spent 11 months in jail. Bizarrely, CU's School of Journalism built a "Dalton Trumbo Free Speech Fountain," at CU, dedicated to a man who devoted his life to a cause which would eliminate freedom of speech and the press.

False accusations though, are as old as the Bible, and as modern as the selectively edited video of Shirley Sherrod. So kudos to CU Opera for a fine presentation of a great American opera on a timeless theme.

Categories: Uncategorized 83 Comments

Tyrannical "governments" are not genuine governments

David Kopel• March 18, 2011 2:07 am

Some background sources for the principle in our Declaration of Independence that tyrannical "governments" are merely a large-scale form of organized crime, rather than real governments:

In the views of the American Founders: Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Constitutional Commentary 87 (1992) (Founders saw no fundamental distinction between individual self-defense against criminals and collective self-defense against criminal governments).

Algernon Sidney, Discourses Concerning Government, ed., Thomas G. West  (Indianapolis: Liberty Fund, 1996), ch. 3, sect. 46, p. 574 (To be subject to a tyrant is little different from being under the power of a pirate). Sidney, who was executed for treason in 1683 by the wicked Stuart regime, was venerated by the English and Americans as one of the greatest martyrs of liberty. Thomas Jefferson listed Sidney (along with Aristotle, Cicero, and John Locke) as one of the four major sources of the American consensus on rights and liberties which was expressed in the Declaration of Independence.

Philo of Alexandria (approx. 20 B.C. – 50 A.D.). One of the greatest Jewish legal scholars of antiquity, Philo wrote about the Jewish law in Alexandria, Egypt, during the period when Egypt and Israel were both under Roman rule. Much of Philo's treatise aimed to show that Jewish law from the Bible was consistent with Roman law. Erwin R. Goodenough, The Jurisprudence of the Jewish Courts in Egypt: Legal Administration by the Jews Under the Early Roman Empire as Describes by Philo Judeaus 230–31 (The Lawbook Exchange 2002; reprint of 1929 translation) (A petty thief is no different in principle from a tyrant who steals the resources of his nation, or nation which plunders another nation. In other words, all forms of theft are merely variations on a single type of attack on society: an assault on the right of ownership of private property.)

Mencius (approx. about 371–289 B.C.), the most influential developer of Confucian thought: "Now the way feudal lords take from the people is no different from robbery." Mencius, transl. D.C. Lau (N.Y.: Penguin, 1970), book 5, part B. Accordingly, killing a tyrant is very different from killing a legitimate king, which would be immoral: "A man who mutilates benevolence is a mutilator, while one who cripples rightness is a crippler. He who is both a mutilator and a crippler is an ‘outcast.' I have heard of the punishment of the ‘outcast Tchou' [an emperor who was overthrown], but I have not heard of any regicide." Ibid., book 1, part B, item 8. Unlike the other authors cited in this post, the philosophy of Mencius was not known to the American Founders directly, nor was it known indirectly through other philosophers. Mencius did, however, express the same principles of Natural Law which the Founders believed to be universal. (More by Kopel on Mencius here.)

John of Salisbury. Author of Policraticus (approx. 1159), the most influential Western book written between the sixth century and the thirteenth. To rule tyrannically is necessarily to perpetrate treason, and therefore a tyrant may be slain:

[I]t is not only permitted, but it is also equitable and just to slay tyrants.  For he who receives the sword deserves to perish by the sword.
 But ‘receives' is to be understood to pertain to he who has rashly usurped that which is not his, not to he who receives what he uses from the power of God.  He who receives power from God serves the laws and is the slave of justice and right.  He who usurps power suppresses justice and places the laws beneath his will.  Therefore, justice is deservedly armed against those who disarm the law, and the public power treats harshly those who endeavour to put aside the public hand.  And, although there are many forms of high treason, none of them is so serious as that which is executed against the body of justice itself.  Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public.  For if all prosecutors may be allowed in the case of high treason, how much more are they allowed when there is oppression of laws which should themselves command emperors?  Surely no one will avenge a public enemy, and whoever does not prosecute him transgresses against himself and against the whole body of the earthly republic.

John of Salisbury, Policraticus 25 (Cary J. Nederman ed. and trans., Cambridge Univ. Press 1990) (approx. 1159). (My essay on the book is here.)

Augustine of Hippo. The most influential Christian philosopher since the closing of the canon: "If justice be taken away...what are governments but great bands of robbers?" Augustine, Concerning the City of God Against the Pagans 139 (Henry Bettenson trans., Penguin, book 4, 1984) (translation from 1467 manuscript; originally written in early 5th century ). To illustrate the point, Augustine used a story attributed to Cicero:

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, "What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor."

"All tyrants reach a miserable end," wrote John of Salisbury. He was not universally right, at least in the sense that he meant, listing various tyrants who died violently; Stalin, Lenin, and Mao died of natural causes. But his words are coming true in Libya. How long will Gaddafi's mercenaries from Chad, Niger, and Syria be willing to endanger their own lives in attempting to resist the overwhelming might of air forces and navies which are better-armed, and superior in every respect?

Categories: Uncategorized 69 Comments

Ecstatic crowds in Libya celebrating imminent use of U.S. military force against Gaddafi

David Kopel• March 17, 2011 7:08 pm

U.N. Security Council Resolution passes 10–0. Live feed from Benghazi on Al Jazeera English. The Resolution authorizes "all necessary measures" except military occupation of Libya. By my reading, the authorization includes destruction of Gaddafi's anti-aircraft defenses, and of his air force and its mercenary pilots. As President Reagan once said, "We begin bombing in five minutes." I hope.

UPDATE: Wall Street Journal reports that Egyptian army is shipping arms to the Libyan "rebels." Which is to say, to the legitimate government of Libya. As the Declaration of Independence affirms, the only legitimate governments are those founded on the consent of the governed. Accordingly, the Gaddafi gang was never a legitimate government, merely a large gang of criminals who controlled a big territory. The French government's diplomatic recognition of the legitimate Libyan government reflects this fact. @liamstack reports that France says it will be ready within hours to fly over Libya. @lilianwagdy says that Libyans in France are chanting "Zanga Zanga, Dar Dar, We will get you Muamar!" Vive la France! Vive Sarkozy! Vive les droits de l'homme!

Categories: Genocide, International Human Rights Law, International Law 122 Comments

Text of U.N. Security Council draft resolution on Libya

David Kopel• March 17, 2011 5:28 pm

Right here, provided by the Inner City Press, which has long been the best English-language media covering the United Nations. The resolution authorizes member states–acting either through regional organizations or nationally–to "take all necessary measures" to establish a no-fly zone over Libya. It further authorizes the member states to enforce the arms embargo against Libya by interdicting ships on the high seas. The resolution forbids the establishment of an occupation force. A vote is set for 6 p.m. Eastern Time. On Twitter, @SultanAlQassemi writes that according Al Arabiya's UN correspondent, China, Russia, and South Africa (in other words, the pro-dictator caucus on the Security Council) and two other countries will abstain.

Categories: Genocide, International Human Rights Law, International Law 14 Comments

Obama's moment of truth

David Kopel• March 15, 2011 8:17 pm

Outstanding essay on the disaster in Libya and President Obama's failure to act, by Larry Diamond in The New Republic. Diamond mainly discusses the consequences for the Libyan people, but I think that the harm will be global. Barack Obama's America is showing itself to be a paper tiger; and every one of America's enemies, especially the tyrants in Iran and Venezuela, are realizing that they can step up their aggression. If Gaddafi stays, he will resume his nuclear and chemical warfare plans and his support of global terrorism, secure in the knowledge that this American President will do nothing to stop him, unless the Russians and Chinese give permission. This week is may be one that will cause terrible problems for the United States for decades to come, comparable to the week when Khomeini seized power in Iran.

I've previously defended President Obama's enthusiasm for golf, but the picture of the American President going on television to announce his predictions in a college basketball tournament, while America's interests and long-term security are in imminent peril, is disconcerting. Whatever Barack Obama's virtues, Hillary Clinton was right: he was not ready for the 3 a.m. phone call; and it appears that he never will be.

Categories: Obama 256 Comments

Why Obamacare mandate penalty can't be a tax

David Kopel• March 15, 2011 12:36 pm

My recent op-ed in the Orange County Register explains why. In short, the statute says it's a "penalty," not a tax, and United States v. Sonzinsky teaches that courts should not speculate that something which Congress calls a "tax" is really a "penalty"–or vice versa. Besides that, it's not a constitutional tax because: 1. it's not a 16th Amendment income tax, because income is an "undeniable accession[] to wealth." Merely refusing to buy a product is not an "accession to wealth," but merely a continuation of the status quo. It's not an excise tax, because such taxes are imposed on an item or activity, and doing nothing is neither. It can't be a direct tax because it's not apportioned by population.

Categories: Constitutional Law, Health Care, Taxes 145 Comments

Why I am not worried about Japan's nuclear reactors

David Kopel• March 14, 2011 12:15 am

That's the title of a post on the Morgsatlarge, reprinting a letter from Dr. Josef Oehman of MIT. According to his web page, his main research interest is "risk management in the value chain, with a special focus on lean product development." Although he's a business professor and not a nuclear scientist, his father worked in the German nuclear power industry, and the post provides a detailed and persuasive (at least to me) explanation of how the endangered Japanese nuclear power plants work, and why their multiple backup systems  ensure that there will be neither a nuclear explosion nor a catastrophic release of radiation. The American cable TV channels, by the way, seem to be taking a much more sober approach than they did yesterday, when Wolf Blitzer was irresponsibly raising fear of "another Chernobyl."

A shorter article by William Tucker in Monday's Wall Street Journal covers some of the same ground.

Categories: Environment 194 Comments

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