Kopel Blog Archive September-October 2011

Bleg: The American Revolution as a guide to modern law

• October 19, 2011 10:09 pm

The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, Justices have looked at the revolution-provoking use general warrants (Henry v. United States, 1959), unrepresentative government as exemplified by (but not limited to) taxation without representation (Texas v. Johnson, 1989, Rehnquist dissenting), and violation of the right to trial by jury, via use of vice-admiralty courts (Parklane Hosiery v. Shore, 1979, Rehnquist dissenting).

More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is "supplying of content" to constitutional "liberty," the Court should have "regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke."

Can commentators supply some additional examples, either regarding specific issues, or general Poe-like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.

Categories: Constitutional Theory, Originalism, Uncategorized Comments

What are the most influential law school casebooks of all time?

• October 14, 2011 2:32 am

One way to judge might be to consider which casebooks played a major role in getting their particular subject widely adopted as a class in American law schools. Among the top contenders might be: Ernst Freund, Cases on Administrative Law (1911); and Richard W. Jennings & Harold Marsh, Securities Regulation: Cases and Materials (1963).

Ranking even higher, I would suggest, would be a casebook that not only get the subject into the law schools, but plays an important role in creating new lawyers who will, during their careers, significantly change the existing law on the subject. On the real-world influence scale, can anything top Ruth Bader Ginsburg, Herma Hill Kay & Kenneth M. Davidson, Text, Cases, and Materials on Sex-Based Discrimination (1974)?

Commenters, what do you think should make the honor roll of most influential casebooks of all time?

Categories: Casebooks 0 Comments

President: "I do not believe in the Divinity of Christ."

• October 8, 2011 7:47 pm

The President also said that he did not believe "in the literal truth of the creed as it is recited in the orthodox evangelical churches." He did, however, believe that Jesus had set forth an outstanding system of moral precepts.

Although the general views above were shared by Thomas Jefferson, the President quoted above was William Howard Taft, who served from 1909-13, and later as a very good Chief Justice of the Supreme Court.

Americans today tend to congratulate themselves for being more tolerant and open-minded than their ancestors of a century or two ago. Yet those earlier Americans elected the great Jefferson twice, and elected Taft once. Taft is not today remembered as a great President, but he at least he did much less harm to the United States than the man who succeeded him, Woodrow Wilson.

I find it disgusting that a Gallup Poll found 22% of Americans (18% of Republicans, 19% of Independents, and 27% of Democrats) say that they would not vote for a well-qualified candidate of their party who happened to be a Mormon. That's actually an increase compared to 17% who gave the same answer in 1967.

If some Christians want to take the theological view that Unitarians, or Mormons, or, for that matter, Catholics are not true Christians, that's their privilege, and it's very legitimate source of religious debate. I don't think that whether a candidate fits a voter's definition of orthodox Christianity is a legitimate basis for voting for a public official.

Kudos to Mitt Romney, in his speech today at the Values Voters summit, for denouncing the "poisonous language" of Bryan Fischer, another invited speaker at the event, who makes the idiotic claim that the First Amendment was not intended to protect non-Christians.

Categories: History, Religion 0 Comments

Arizona Sheriffs call for special prosecutor in Fast & Furious

• October 8, 2011 4:32 am

Ten of Arizona's 15 county sheriffs, including Democrats and Republicans, have called for the appointment of a federal special prosecutor in the Fast & Furious scandal.

Categories: Guns, Uncategorized 0 Comments

A quarter century of civil rights progress: Spread of the right to carry

• October 7, 2011 7:39 pm

An excellent graph at No Lawyers, Only Guns and Money, shows the story. We've come a long way, baby.

And there's still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so "may issue" amounts to "will not issue." It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right.

Categories: Guns, Right to carry 0 Comment

Crime plummets in Chicago and DC after handguns re-legalized

David Kopel • October 4, 2011 2:44 am

So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago's violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago's crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago's sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17–22 of the brief, and the appendices.

Categories: Guns, McDonald v. City of Chicago 107

What Should the Supreme Court do with the Obamacare Case?

David Kopel • October 3, 2011 1:07 pm

That's the question posed today over at Scotusblog. It's the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.

My answer to what the Supreme Court should do is:

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: "commerce" means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are "health laws of every description." The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are "commerce."

Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally "proper" to force citizens to spend their money on a government-favored Big Insurance oligopoly.

The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); "Health Laws of Every Description": John Marshall's Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce': A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexis/Nexis).

Since Scotusblog is trying to get people to comment on its own website, I'm not opening comments on this post, and I encourage you to share you thoughts over at Scotusblog.

Categories: Commerce Clause, Constitutional Law, Health Care, Individual Mandate No Comments

Right to bear arms lawsuit in Illinois: Professors' amicus brief

David Kopel • September 26, 2011 8:08 pm

Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.

Oklahoma City Univ. law professor Michael O'Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O'Shea's co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O'Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in "sensitive places"). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.

Categories: Guns, Right to carry 80 Comments

New law school textbook on the Second Amendment and firearms regulation

David Kopel • September 18, 2011 2:39 am

Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O'Shea (Oklahoma City), George Mocsary (Connecticut), and me.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website's promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post–Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post–Heller cases in the lower courts). Or if you're teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Continue reading ‘New law school textbook on the Second Amendment and firearms regulation' »

Categories: Casebooks, Guns 42 Comments

Congressional hearing on interstate handgun carry reciprocity

David Kopel • September 14, 2011 10:21 pm

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law's Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday's hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

Categories: Congress, Federalism, Fourteenth Amendment, Guns, McDonald v. City of Chicago, Right to carry 80 Comments

Why the Obamacare penalty is not a "tax"

David Kopel • September 11, 2011 3:46 pm

Rob Natelson explains it all n his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it's a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it's not a "tax" in the constitutional sense. Rather, it is a regulation of commerce.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament's refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of "commerce...among the several States" is a separate issue. The original meaning question for the mandate's penalty is a commerce issue, not a tax issue.

Categories: Commerce Clause, Health Care, Taxes 63 Comments

Does requiring the people of a state to vote on tax increases violate the Republican Form of Government guarantee?

David Kopel • September 8, 2011 8:32 pm

That's the question raised by a lawsuit in Colorado's federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is "no." The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a "republic" to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

Categories: Congress, Constitutional History, Constitutional Law, Constitutional Theory, Democracy, Election Law, Supreme Court 32 Comments

Who wants to provoke a constitutional crisis over abortion?

David Kopel • September 5, 2011 7:59 pm

Today South Carolina Republican Senator Jim Demint hosted a forum at which five Republican presidential candidates spoke. The transcript is here. Each candidate appeared one at a time, and the format allowed for in-depth questions and answers. Among the questioners was Princeton University's Robert George. Prof. George asked each candidate if he or she would support congressional legislation, under section 5 of the 14th Amendment, to ban abortion. To state the obvious, such legislation would be contrary not only to Roe v. Wade and Penn. v. Casey (abortion rights are protected by section 1 of the 14th Amendment), but also to Boerne v. Flores (Congress cannot use section 5 to protect a right in defiance of direct Supreme Court holding about the particular aspect of the right). The question explicitly presumed that Roe v. Wade had not been overturned, and that a Human Life Amendment to the Constitution had not been adopted.

The candidates' answers were as follows:

Bachmann: Yes.

Cain: Yes.

Gingrich: Yes. Cooper v. Aaron's assertion of judicial supremacy was wrong. Following the precedent of the first Jefferson administration, I would abolish some federal judgeships. But I am not as bold as Jefferson. "I would do no more than eliminate Judge Barry in San Antonio and the ninth circuit. That's the most I would go for. (LAUGHTER) (APPLAUSE). But let me say this. That's part of the national debate. That's not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States."

Paul: No. Violence and murder should be dealt with by the states. The federal police are already too numerous. I support a bill to deprive lower federal courts of jurisdiction over abortion cases, so that state restrictions on abortion would be immune from judicial review.

Romney: No. I would focus on appointing judges who would return abortion regulation to the states. The George proposal "would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it's reasonable that something of that nature might happen someday. That's not something I would precipitate."

Personally, I agree with the Romney approach. Moreover, the next President is going to have to address a fiscal crisis that will devastate the United States economy soon if it is not solved. Dealing with the fiscal crisis is going to be quite difficult politically, in part because there are many millions of people who benefit from the current, and unsustainable, levels of federal spending. The tax consumers may be very highly resistant to any reduction in the amount of money that flows to them. So there will be no shortage of national division and acrimony. Thus, 2013 would be an especially bad time to precipitate a constitutional crisis over a social issue. The answers of Romney and Paul displayed prudence, which I think is a very important characteristic for a President, and the answers of Bachmann, Cain, and Gingrich did not.

As for the Ninth Circuit, Gingrich has been saying the same thing since March, according to Politico. I have not found anywhere where he has provided details on this plan, but perhaps it would involve merging the 9th circuit states into the 8th and 10th circuits, since they border the 9th. The Politico article is not entirely clear, but it appears that Gingrich has claimed that he could get rid of the 9th circuit by signing an executive order. This would be plainly unconstitutional, a usurpation of power worthy of impeachment. Article III gives Congress, not the President, the power to "ordain and establish" the inferior federal courts. During the Jefferson administration, the Judiciary Act of 1802 repealed the Judiciary Act of 1801, in which the lame duck Federalist Congress had created many new federal judgeships, to which President John Adams had appointed Federalists in the waning days of his administration. As President Jefferson recognized, the choice to eliminate federal judgeships belongs to Congress, not the President acting by himself. [Update: a commenter says the video (for which a link was not provided) shows that Gingrich was not claiming that he could abolish the 9th Cir. by executive order. I looked on the Internet, and did not find a video of the March 25 Iowa speech by Gingrich. There's a video of a speech earlier that month in Iowa, in which he criticizes the 9th Cir. but does not call for its abolition.]

Categories: Federalism, History, Politics, abortion 396 Comments

The rise and fall of the Second Amendment "collective right"

David Kopel • September 5, 2011 3:38 pm

My recent article for America's 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a "collective right," which, like "collective property" in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

Tags: ,

Categories: Constitutional History, Constitutional Law, Guns, History, Militia, Supreme Court 58 Comments

Remember America's Labor Heroes

David Kopel • September 5, 2011 2:31 am

This essay, which I wrote in 2000, celebrates the brave men and women of the Colorado labor movement, who in the coal fields of southern Colorado early in the 20th century, stood up against murderous company goons and against the soldiers of the Colorado National Guard who perverted their organization.

Labor Day is a day to remember that labor rights are human rights, and that the right of Americans to come together in voluntary organizations, including labor unions, is part of the core of American freedom. On Veterans Day or Memorial Day, we remember that the freedoms we enjoy today are the fruit of the sacrifices made by our armed forces. We remember this even if we disagree with some military actions, or even if we know that some past or present military leaders were bad people. Likewise, on Labor Day, even if we recognize the harmfulness of much of the current agenda of SEIU, NEA, and so on, we should remember the historic debt that all Americans owe to the Labor movement. One part of that debt is the essential role that labor leaders such as Walter Reuther and Lane Kirkland played in providing bipartisan support for resistance to the evil Soviet empire, an empire whose ultimate objective was to reduce all the workers of the world to slavery.

Categories: History 160 Comments

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