Kopel's Corner weblog

This week's National Journal poll of bloggers asked about the chances that Congress will pass Cap & Trade and health care bills. As for "How likely is Congress to enact comprehensive health reform legislation this year?" 80% of the Left, but only 42% of the Right, thought that passage was "very" or "somewhat likely."

I voted for "very likely," and wrote: "Very likely to pass something that will be called 'comprehensive health reform,' due to political needs to demonstrate a major accomplishment. Prospects for creating a government-run program appear to be dimming, fortunately."

Regarding "How likely is Congress to enact 'cap and trade' legislation this year to curb global warming?" (there is supposed to be a House vote on Friday), 71% of the Left said "very" or "somewhat unlikely." Surprisingly, only 50% of the Right thought it unlikely. This is an interesting result, since usually each side is relatively more optimistic about the prospects for whatever particular eventuality that side favors.

I voted "somewhat unlikely," and explained "Any 'cap and trade' that can actually pass will probably be a C&T in name only, with so many special exemptions as to be nearly meaningless in terms of carbon reduction -- although of enduring importance as a venue for rent-seeking and special interest gamesmanship."

In previous weeks, some VC commenters have wondered about the significance of the Blogger Poll. I suppose that the answer is that it has the same significance as the National Journal's long-running polls of "political insiders." (Or, most recently, of "congressional insiders.") For people who are professional participants in U.S. politics or government--a group which probably comprises close to 100% of National Journal print subscribers--knowing what the "insiders" think is interesting and important in itself. Of course, the insiders can sometimes be seriously mistaken. (As in an early 2004 insiders poll in which most of the Democrats thought that Howard Dean had a near-lock on the presidential nomination.) Nevertheless, it is useful for a political professional to know what the insiders happen to be thinking this week. Similarly, it is useful for a professional to know what the political bloggers are thinking, regardless of whether the professional estimates that the bloggers are correct. National Journal's on-line audience does include some non-professionals, but these readers are self-selected to be, at least, highly interested in politics, and so for them, knowing what the insiders or the bloggers think can also be interesting.

15 Comments

[David Kopel, June 23, 2009 at 3:55am] Trackbacks

Iranian gun laws bleg:

The Small Arms Survey suggests that Iran's per capita gun ownership rate is 0.053 (that is, about one gun for every twenty people). This is fairly low by global standards. (See Tables 6 and 7 of my recent article in the Texas Review of Law & Politics.) Could commenters please supply information about the gun laws of Iran, and how they are enforced? What kind of people in Iran are allowed to own guns? What kind of guns? Please don't get into a discussion of whether the Iranian protesters would be better/worse off if they had guns. Just supply accurate information, with citations if possible. Comments based on personal experience from people who have lived in Iran, or visited Iran, are welcome.

97 Comments

[David Kopel, June 19, 2009 at 11:37am] Trackbacks

Left/Right Bloggers in accord on grades for Obama WH staff, but not for his Econ. and Nat. Security Teams:

This week's National Journal poll of top political bloggers asked for performance grades thus far for various components of the Obama team. Regarding the White House staff, the Left/Right gap was fairly small, with the Left collectively assigning a B-, while the Right gave a C. I gave the staff a B, and wrote: "Although it's hard to tell from the outside, the staff seems to be working together well in managing the administration."

Bloggers were also asked to grade the Economic Team and the National Security Team. The Left gave the Econ Team a C+, and the National Security Team a B-. The Right gave an F in Econ, and a D in National Security. I voted for a D in both, and wrote: "Out-of-control spending, with massive debt financed by a radical expansion in the money supply. Timid on Iran, aggressive against Israel, self-deluded on the Palestinian desire for peace, and miserable handling of relationships with European governments."

50 Comments

[David Kopel, June 16, 2009 at 5:26pm] Trackbacks

Chinese woman resists rape, is criminally convicted, then released:

Deng Yujiao, the hotel waitress whose case became a cause célèbre in China, was released today. The Badong County People's Court had found her guilty of causing "injury with intent" because she fatally stabbed one local Communist official and injured another.

Ms. Deng explained that she used a fruit knife in self-defense when the men attempted to sexually assault her. The original police report said that the men asked for "special services," which is popular euphemism for sex. Later reports claimed that the men only asked for "bathing service," which is a legitimate service offered at hotels like the one Deng worked at.

In any case, Ms. Deng repeatedly told the men that she was a waitress and did not work in the bathhouse section of the hotel. The official report omits the fact that Deng Guida, the decedent, is accused of beating the victim after being refused sex, calling her a prostitute and threatening to kill her. Finally, the most recent report, released a few days before the 20th anniversary of the Tiananmen Square massacre on June 4, downplayed Deng Yujiao's "guilt" and seemed calibrated to appease the growing numbers of Chinese clamoring for justice.

Even when releasing Ms. Deng, the court claimed that her self-defense was "excessive." That claim seems incorrect. Article 20, Clause 3 of the Chinese Criminal Law states:

Where a defence is conducted to an immediate violent crime of committing physical assault, committing homicide, robbery, rape, kidnapping, and other crimes seriously endangering the security of a person, and it causes bodily injury or death to the unlawful infringer, such an act shall not be defence that exceeds the limits of necessity, and criminal responsibility shall not be borne for such an act.

Nevertheless, the court pointed to two grounds in favor of releasing her. First, she had reported the incident to the police. Second, she supposedly had diminished responsibility because she is manic-depressive. Her former lawyers, however, dispute the manic-depressive assertion. Some commentators believe the mental health allegation, initially made at the outset of the investigation, was originally fabricated to discredit her; later, it became a handy tool to have her released without the government needing to openly account for the Communist Party officials' crimes.

Deng Yujiao's release is very good news; but it is less a victory for the rule of law--she was found guilty after all--and more a political response to the widespread public support she received and an attempt to head off further public discussion of violent abuses by Communists Party officials.

Thanks to Epoch Times, a newspaper which is outlawed in China, but which is distributed in the U.S. and other nations, and which reports frequently on human rights abuses in China. Also thanks to Independence Institute summer associate Dave Heal, who researched this story and co-wrote this post.

29 Comments

[David Kopel, June 15, 2009 at 7:08pm] Trackbacks

Obama administration moves to ban 80% of folding knives:

Under the 1958 federal Switchblade Act, switchblade knives are not importable into the United States, and may not be shipped across state lines. On May 21, U.S. Customs & Border Protection (CBP) proposed the revocation of four previous Ruling Letters; the effect would be a drastic expansion of the definition of non-importable knives. The organization KnifeRights warns that revocations would outlaw approximately 80 percent of the current market in folding knives.

The federal law does not apply to the mere possession or carrying of knives, but as KnifeRights explains, many state and local bans on possession or carrying are parasitic on the federal definition. Accordingly, if the proposed Customs change goes into effect, many millions of people who own or carry pocketknives would instantly be defined as criminals.

The National Rifle Association and other Second Amendment groups have issued alerts about the proposed change, but the KnifeRights website is the key source for detailed information. Founded in 2006, KnifeRights is still a fledgling organization; they do good work, and I am pleased to be a member.

108 Comments

[David Kopel, June 12, 2009 at 11:28am] Trackbacks

Bloggers unsure of whether Health Care bill should be bipartisan, and who Republican leader is:

This week's National Journal poll of top political bloggers produced unusually fractured results. Question one was "Politically, how important is it to President Obama that health care reform be bipartisan?" Sixty percent of the Right and 42% of the Left thought it was "very" or "somewhat" important.

Question 2 was "Who is the dominant voice of the Republican Party these days?" From both the Right and the Left, Rush Limbaugh came in first, and Dick Cheney came in second. However, on the Right, the winner was "none", which also came in third among the Left voters. My opinion was: "None. Which is good. The Republicans need to have a broad debate about their political principles, rather than picking a leader before they decide where they should go."

9 Comments

[David Kopel, June 12, 2009 at 11:05am] Trackbacks

Another Emmy Nomination:

When I am not blogging, one of my activities is appearing on the weekly public affairs program Colorado Inside-Out. It's similar to the national weekly roundtable shows, except that we don't overtalk each other, and we try to advance the discussion, rather than repeating talking points. Once or twice a year, we do a "time capsule" show in which we take the show back to some point in Colorado history. Last summer, we taped an 1858 show. It has just been nominated for a Heartland Regional Emmy, in the category "Interview/Discussion Program." (The Heartland region covers Denver, Oklahoma City, Tulsa, Wichita/Hutchinson, Omaha, Colorado Springs/Pueblo, Lincoln/Hastings-Kearney, Topeka, Grand Junction/Montrose, Cheyenne/Scottsbluff and North Platte.)

This is our second Emmy nomination, following our 2008 nomination for our 1927 show. Both shows, as well as some recent regular episodes, are available on-line here.

BTW, in the 1858 show, all the characters, except mine, are genuine historical people from early Colorado. For 1858, I play Chauncey Drizelwhit, whose descendant Chumley appears in 1927. William Byers, the founder of the Rocky Mountain News, is played by Kevin Flynn, the transportation reporter for the Rocky. The host is Raj Chohan, a reporter for CBS 4 TV. The blonde woman is Patty Calhoun, publisher of the weekly newspaper Westword. The other woman is Dani Newsum, who has been a radio host, a civil rights and gay rights activist, and who currently teaches History at the University of Colorado. The two men around the whisky barrel at the start of the show are Tom Noel (on the left, Colorado's foremost public historian) and Dennis Gallagher (Denver City Auditor, formerly a State Senator). William Sitting Bull Stewart plays Chief Little Raven.

As for firearm on the table, it's a reproduction of the Colt Patterson Percussion Revolver. We were not unmindful of Chekhov's gun rule.

1 Comments

[David Kopel, June 5, 2009 at 11:50am] Trackbacks

Bloggers Agree: GM Bankruptcy Good; Sotom. Helps Ds, Hurts Rs:

This week's National Journal Poll of political bloggers asked "Do you agree with President Obama's decision to take General Motors to bankruptcy court?" One hundred percent of the Left, and 54% of the Right said "yes."

I was in the majority, albeit with a qualification: "Even better would have been bankruptcy according to established legal rules, rather than the Peron-style expropriation of money from the senior bondholders for the benefit of the UAW."

Question 2 was "Regarding the Supreme Court nomination of Sonia Sotomayor, what will be the political impact on your party?" On the Left, 94% thought it would help their party, and on the Right, 67% thought it would hurt their party.

My answer was idiosyncratic. Although it's listed under "minor harm," I had voted for "minor help." I explained: "As a Democrat, I think it will help the party by mollifying some of the Hispanics who will be upset by Obama's inability to pass an amnesty program for illegal aliens. The nomination may also benefit Republicans, if Republican senators raise serious objections about some of Sotomayor's unpopular and legally weak decisions, such as Ricci, Maloney and Village of Port Chester."

23 Comments

[David Kopel, June 4, 2009 at 6:07pm] Trackbacks

Podcasts on 7th Cir. handgun case, and Montana Firearms Freedom Act:

Just uploaded: Jon Caldara and I discuss the 7th Circuit decision in NRA v. Chicago. 12 minutes. In another podcast, Amy Oliver and I discuss the Montana Firearms Freedom Act, which attempts to exempt guns manufactured and possessed within Montana from federal laws based on the interstate commerce power. 16 minutes.

25 Comments

[David Kopel, June 4, 2009 at 12:42pm] Trackbacks

Koh, No!

In a forthcoming article for America's 1st Freedom, I detail Harold Koh's expressions of strong support for severe anti-gun laws, his stated intention to use his government position to promote such laws, and various techniques of transnationalism by which he could, as Legal Adviser to the U.S. Department of State, advance his agenda.

46 Comments

[David Kopel, June 4, 2009 at 11:33am] Trackbacks

The Obama Effect: US more popular in Germany:

A recent poll by WorldPublicOpinion.org finds that German public opinion of the United States has improved notably in recent months. Asked if the U.S. is playing "a mainly positive or mainly negative role in the world," the positive side won 44% to 34%. Last year, "mainly positive" had only 20% support. An amazingly high 89% of Germans trusted Obama to do the right thing regarding world affairs.

The German public does disapprove, by 37% to 54%, of Obama's escalation of the war in Afghanistan, and by 52% to 42%, favors immediately ending Germany's participation in that war.

13 Comments

[David Kopel, June 2, 2009 at 4:19am] Trackbacks

Sotomayor vs. the Second Amendment, Part II:

As I detailed in a previous post, Judge Sotomayor co-authored two opinions which denied that the possession of a firearm is a fundamental right. The first case can defended as based on what was, at the time, still-valid dicta. The second case is indefensible.

The first case was United States v. Sanchez-Villar (2004). For the proposition that that there is no fundamental right to possess a gun, Judge Sotomayor and the other two judges quoted United States v. Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.

Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:

Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport "in commerce or affecting commerce ... any firearm." Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class.

The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.

It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court court judges who had "overread Miller" and criticized Justice Stevens for wanting to defer to "their erroneous reliance" on interpretations similar to the one proffered by the Second Circuit in Toner. The Heller decision stated that "Miller did not hold that and cannot possibly be read to have held" that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.

In 2009, Judge Sotomayor was part of a three-judge panel which decided a challenge to New York state's prohibition of nunchaku, Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the right to arms issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about the Fourteenth Amendment: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. (Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.)

The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test: 1. Does the legislative act interfere with a fundamental right or single out a suspect classification? 2. If not, is there a rational basis for the law?

The cigar aficionado Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that the right to arms is not a fundamental right.

The opinion in Maloney v. Cuomo is not a good example of intellectual rigor. When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.

100 Comments

[David Kopel, May 29, 2009 at 6:54pm] Trackbacks

Important New Translation of the Iliad:

Professor Christian Kopff of CU-Boulder recently wrote the introduction to a new translation of the Iliad; I interviewed him about why this new version is important. 33 minutes.

0 Comments

[David Kopel, May 29, 2009 at 12:17pm] Trackbacks

Guns in Parks: The Hoplophobes’ Travel Guide to the United States:

Into today's issue of The New Ledger, I analyze some of the reader comments from last week's reader comments to a collection of pro/con essays in the on-line New York Times, regarding guns in National Parks.

76 Comments

[David Kopel, May 29, 2009 at 11:54am] Trackbacks

Does Biden help Obama? Lefts Says Yes; Right Says No:

This week's National Journal poll of political bloggers asked: "What is Vice President Biden's impact on the Obama administration?" Of Left-leaning bloggers, 81% said that he is helping "a lot" or "a little." On the Right, nobody thought he was helping a lot, and 23% thought he was helping a little. Fifty-four percent said "Hurts a little."

I voted with the Right majority, and wrote: "Was supposed to be a wise expert in foreign policy. Now rather comical. In the last six months, has greatly underperformed Sarah Palin."

The results page also include the blogger poll on Sonia Sotomayor, which was published earlier this week, and discussed previously on the VC.

32 Comments

[David Kopel, May 28, 2009 at 5:25pm] Trackbacks

Does the Convention Against Torture apply to abortion?

The Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:

The Committee was deeply concerned about Chile’s [sic] anti-abortion law, which prohibited abortions even in cases of rape, incest or when the life of the mother was at stake. That meant that women victims of violence were subjected to continuing violations, placing them under serious traumatic stress with the risk of incurring long-term psychological problems. A further concern were reports that human rights defenders were systematically harassed and received death threats, as well as the fact that women defenders of reproductive rights were subjected to criminal investigations.

Amnesty International has been pushing the issue, and castigated Nicaragua's abortion law in an April report to the UN Committee. After the Committee issued its statement, AI called on Nicaragua to comply wiht the CAT by liberalizing its abortion laws, including by repealing all criminal sanctions against abortion providers.

The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties. A report from C-Fam indicates that other UN Committees have been using their own particular treaties to pressure Nicaragua on abortion.

It is indisputable that childbirth is often very painful, and that some pregnancies can have severely painful or life-threatening complications; it is also true that abortion can cause "severe pain and suffering" for the fetus. However, the CAT itself defines "torture" only to include "severe pain and suffering" which is inflicted for certain motives--none of which appear to be present in Nicaragua's case. Rather, the Nicaraguan law appears to have been enacted for the purpose of protecting fetal life--not surprising in which a country where almost all the people are either Roman Catholic or evangelical Protestant.

The UN Committee raised concerns about harassment of "human rights defenders" and "women defenders of reproductive rights." The claims of harassment (if factually accurate) would very likely indicate violations of other human rights treaties which guarantee freedom of speech, of political activism, and so on. But the harassment (as long as it fell short of torture) would seem entirely unrelated to the jurisdiction of the UN Committee Against Torture, unless one concludes (as AI argues) that banning abortion is sometimes a form of torture; in that case, pro-abortion speech would be considered anti-torture speech, and therefore the harassment of speakers have some relevance to the international law against torture.

FWIW, if I were an American legislator (and presuming that Roe v. Wade had been overruled) I would not vote for a law like the Nicaraguan one, and if I were a Nicaraguan, I would never vote for a Sandinista. But the facts do suggest that the UN Committee is treating the Sandinista government very unfairly, indeed unlawfully.

45 Comments

[David Kopel, May 27, 2009 at 6:06pm] Trackbacks

Should Repubs. Fight Sotomayor? Left Bloggers say No; Righties Split:

A special poll of bloggers from The National Journal asked "Would it be politically smart for Republicans to try to block the confirmation of Judge Sonia Sotomayor?" Among the Left bloggers, the unanimous answer was "No." On the Right, 53% said "No" and 47% said "Yes."

I voted "Yes," and wrote: "The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences. [And, I should have added, neither did the Dems. who filibustered Miguel Estrada, who, like Sotomayor, is a Hispanic with an impressive life story.] Sotomayor is on the wrong side of fairness, empathy, the Constitution and the American people in regards to firearms ownership (Maloney v. Cuomo; United States v. Sanchez-Villar); wealthy people using the government's eminent domain power to extort money from small business (Didden v. Village of Port Chester); and a racial spoils system for government employees (Ricci v. DeStefano)."

60 Comments

[David Kopel, May 26, 2009 at 3:07pm] Trackbacks

Highly Dubious Claim against Sotomayor:

Something (to which I will not link) has appeared on the Internet, which purports to describe Sonia Sotomayor's work at Princeton:

Sotomayor is a graduate from Princeton University, where her legal theses included Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture. In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.

There is no reason to believe this is true. The purported source is "American News Inc." The link to this alleged news source is dead. In a quick Internet search, I found no such organization.

Further, the text of the article is self-refuting. An undergraduate at an Ivy League school, including Princeton, would write only one thesis. (Perhaps two if she were an exceptionally hard-working double major.) It would be unheard of for a student to write more than three, as the article claims she did. Nor would anyone who actually knew what a Princeton thesis was describe it as a "legal" thesis.

Moreover, Sotomayor was intelligent enough to graduate from ~~Yale Law School~~ Princeton Summa Cum Laude. It is inconceivable that someone of such intelligence (or even of modest intelligence) could have written a thesis asserting that the Second Amendment actually outlawed gun ownership outside of the militia.

Updated update: Commenters explain that Princeton students write two junior papers and one senior paper; only the latter is called a "thesis." Other commenters point out that her senior thesis was about the Puerto Rican politician Luis Munoz Marin. The blog which created this item has a small tag on the article which says "satire." Although all of the commenters on that blog seem to have taken the article seriously, as has every other cite to it on the web. People who want to read satire on the web would be better off with Iowahawk, which can be recognized as satire because it is sometimes funny.

72 Comments

[David Kopel, May 26, 2009 at 12:47pm] Trackbacks

Sonia Sotomayor versus the Second Amendment:

Maloney v. Cuomo is a 2009 per curiam opinion of the Second Circuit, upholding New York State's complete ban on the possession of nunchaku. New York is the only state in the nation with such an extreme ban.

In the opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).

In this regard, Judges Sotomayor et al. are plainly correct. However, they seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right. As the Heller Court detailed, the fact that the right to arms is pre-constitutional is elaborated in the 1875 Supreme Court case, United States v. Cruikshank.

[UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer", so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.]

Presser did not discuss whether the Due Process clause of the 14th Amendment makes the Second Amendment enforceable against the states. Indeed, Presser could not have discussed the question, since the doctrine of incorporation via the Due Process clause was not invented until later. The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue. However, Maloney's pro se brief in the case never raised selective Due Process incorporation, but only addressed the Fourteenth Amendment in the context of unenumerated fundamental rights (Meyer v. Nebraska, Griswold v. Connecticut, etc.).

The Sotomayor per curiam opinion addressed the Fourteenth Amendment by quoting a previous Second Circuit decision: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The opinion then went on to find a rational basis, since nunchaku had sometimes been used by criminals.

In other words, the Second Amendment is not "a fundamental right." The Sotomayor panel could have offered a legal explanation for why (in the panel's opinion) nunchaku are not "arms" within the meaning of the Second Amendment, and therefore a mere rational basis test for nunchaku bans is appropriate. But the Sotomayor court did not do so. To the contrary, the Sotomayor per curiam opinion treats any Second Amendment claim as not involving "a fundamental right."

The Maloney opinion is, on this issue, entirely consistent with Judge Sotomayor's opinion in a 2004 case: "the right to possess a gun is clearly not a fundamental right." United States v. Sanchez-Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgment vacated, Sanchez-Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).

Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

Related Posts (on one page):

More on Sotomayor and the Second Amendment:
Sonia Sotomayor versus the Second Amendment:

111 Comments

[David Kopel, May 22, 2009 at 5:01pm] Trackbacks

Guns in National Parks:

The on-line New York Times has a daily feature called "Room for Debate." The paper picks a topic for the day, and posts short essays from five experts. Today's topic is Guns in Parks: Safe, Scary or a Sideshow?. My essay on the topic supports the new federal law, and praises President Obama for signing it, because the law simply says that federal lands should follow the same policies as their host states. The four other essayists include Jens Ludwig and John Lott.

37 Comments

[David Kopel, May 22, 2009 at 11:39am] Trackbacks

Bloggers: Pelosi hurt herself. Total split on gov't health insurance:

In this week's National Journal poll of political bloggers, all of the Right bloggers and almost all of the Left one agreed that Nancy Pelosi had hurt herself "with her handling of the waterboarding controversy." Most of the Left bloggres thought that she "Hurt herself a little," while the Right overwhelmingly picked "a lot."

I was in the latter group, and wrote: "The idea that the CIA might have lied to Pelosi, or might be lying now, is not implausible. The idea that Pelosi has been forthrightly providing a consistent version of what she knew and when she knew it appears impossible."

Question 2 asked about "including a new public insurance plan in health care reform." On the Left, 72% said that "Excluding it would be a deal-breaker," while the remainder wanted a public plan, but did not consider it essential. On the Right, 83% opposed a government plan, and 58% called it a deal-breaker. That group included me, and I wrote: "The government insurance program would inevitably benefit from taxpayer subsidies, making it less expensive, in the short run, than independent plans. Over time, the independent plans would be driven out of business, and even before then, many employers would force their employees into the government program. As private competition is eliminated, the imposition of Canadian-style rationing becomes feasible."

60 Comments

[David Kopel, May 20, 2009 at 3:13pm] Trackbacks

The No on Koh Letter:

In April, I signed a joint letter to the Senate Foreign Relations Committee, raising concerns about the nomination Yale Law School Dean Harold Koh to be Legal Advisor to the U.S. Department of State. The No Koh website contains a detailed report on Koh, written by Ed Whelan of the Ethics & Public Policy Center. The website also contains videos, a blog, and a FAQ, although these are aimed more at a lay audience than at persons engaged with legal policy.

While I agree with most, although not necessarily all, of the points made on the No Koh website, my own view on Koh is based on reading six of his law review articles: A World Drowning in Guns, 71 Fordham Law Review 2333 (2003); Is International Law Really State Law? 111 Harvard Law Review 1824 (1998); On American Exceptionalism, 55 Stanford Law Review 1479 (2003); The 1998 Frankel Lecture: Bringing International Law Home, 35 Houston Law Review 623 (1998); International Law as Part of Our Law, 98 American Journal of International Law 43 (2004); Why Transnational Law Matters, 24 Penn State International Law Review 745 (2006).

Deah Koh is an excellent writer and an impressive scholar. But his legal vision is for a substantial diminution of the sovereignty of the American people, and as Legal Advisor to the State Department, he would have tremendous power to advance that vision. As Dean Koh has explained, his writings on transnationalism are not merely descriptive; they are also a strategy for activists. Of course Dean Koh has the right to advocate as sees fit. The Constitution, however, requires that major presidential appointees must earn the Advice and Consent of the United States Senate. The Senate's duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee's record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.

39 Comments

[David Kopel, May 19, 2009 at 5:39pm] Trackbacks

Journal on Firearms & Public Policy:

The Journal on Firearms & Public Policy, published by the Second Amendment Foundation, is an annual interdisciplinary journal. It publishes a mix of original articles, and reprints of important articles published elsewhere. Among the the authors of original articles who may be best-known to VC readers are Gary Kleck, James Jacobs, Roy Wortman, Gary Mauser, Clayton Cramer, Andrew McClurg, and David Beito.

I am happy to announce that 14 of the 20 volumes are now available on-line, with most of the remainder coming soon.

If you are interested in submitting an article (or a query) to the JFPP, just send me an e-mail via the contact on the lower-right column of my home page.

4 Comments

[David Kopel, May 19, 2009 at 4:45pm] Trackbacks

Tenth Circuit Survey, Second Amendment, Habeas:

The Denver University Law Review's annual Tenth Circuit Survey is now on-line, in full text. The Survey is issue 3 of volume 86--below the tables of contents for issues 1 and 2, and the special issue on Obama.

The Tenth Circuit Survey issue includes my article, The Second Amendment in the Tenth Circuit: Three Decades of (mostly) Harmless Error.

One article in the issue which is not about the Tenth Circuit is Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention, by Marc Falkoff. He surveys the historical development of habeas, and argues that habeas has developed in a dialect between the judiciary and the other branches, and that an essential part of the dialect has been the judiciary's willingness to push back against executive or legislative attempts to constrict habeas. In the context of the Guantanamo detentions, he urges the judiciary to take a more assertive stance for more robust habeas.

3 Comments

[David Kopel, May 18, 2009 at 7:07pm] Trackbacks

Question on family rights and international law:

A nation has ratified the International Covenant on Civil and Political Rights. Several provisions of the Covenant protect family rights:

Article 17. "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

Article 23. "1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized."

Article 24. "1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."

For the purpose of limiting population growth, a nation imposes a building ban in a particular area. As a result, newly-married couples often cannot find a home to live in, and so have to move elsewhere. Also, growing families are not allowed to remodel their houses in order to make the house larger for the additional children.

Do the nation's policies violate the International Covenant on Civil and Political Rights? What if the nation forbids people in the area to marry, but allows them to marry if they move to a different area? What if the nation forbids or rations births which are legally allowed in the area, but allows unlimited births elsewhere? If there is a violation of the ICCPR, then is it a violation of the ICCPR for other countries to encourage and/or pressure the nation to continue its current course of conduct? For purposes of this question, presume that all relevant nations have ratified the ICCPR, and ignore the question of whether the ratification makes the Covenant self-executing.

The particular question arises in regard to Judea and Samaria, where Israel, under pressure from the U.S. government, has drastically restricted construction in many communities, so that there is not enough housing to accommodate "natural growth" in population (meaning growth caused by generation-to-generation population increase, rather than growth caused by immigration). For details, see Haaretz (building restrictions), the Jewish Telegraph Agency (Peres tells Biden that Israel can't tell settlers not to get married and have children), and Ynet (which says that some new building is taking place).

In the comments, please keep the focus on the legal issues, rather than pro/con debates over Israelis living in Judea and Samaria. The only exception to this instruction is if your answer itself depends on some related legal issue. For example, "Normally, the restrictions would violate the ICCPR, but the restrictions are permissible because Israelis living in Judea and Samaria is itself of a violation of X international law, and for Y reason, Israel's legal obligation to obey X trumps Israel's obligation to obey the ICCPR."

1 Comments

[David Kopel, May 15, 2009 at 1:34pm] Trackbacks

The proper understanding of "Necessary and Proper":

University of Montana Law Professor Rob Natelson, who is also a Senior Fellow at the Independence Institute, a prolific scholar regarding the original understanding of many provisions of the Constitution. In a 43-minute podcast, I interviewed him about the meaning of the Necessary and Proper clause. As he explains, misinterpretation of the clause is the single most important basis for the expansion of the federal government far beyond constitutional boundaries.

71 Comments

[David Kopel, May 15, 2009 at 1:15pm] Trackbacks

Left/Right bloggers split on whether Cheney helping Republicans. Bright futures for Jindal, Schweitzer, Granholm

This week's National Journal poll of political bloggers asked "Has Dick Cheney helped or hurt the Republican Party since leaving office?" One hundred percent of the Left bloggers thought he was hurting the Republicans, while 3/4 of the Right bloggers thought he was helping. My comment: "Every time Cheney shows his face in public, the Angry Left and the media suffer a relapse of Bush Derangement Syndrome, which keeps them energized in their role as Obama's base. Nevertheless, Cheney is speaking truth to power about Obama's dangerous policies on national security, and providing an important counterpoint to Obama's glib, shallow assertions."

Question two was "Who among your party's current crop of governors has the brightest political future?" On the Right, Bobby Jindal was the winner. On the Left, Brian Schweitzer and Jennifer Granholm tied for first. As the only Democrat among the Right bloggers, I voted for Ted Strickland.

69 Comments

[David Kopel, May 13, 2009 at 3:25pm] Trackbacks

Senate votes to allow licensed handgun carry in national parks:

Sixty-seven Senators voted for the Coburn amendment, which says that persons can carry firearms in national parks and wildlife refuges to the same extent that they are allowed to carry by state law. All Republicans except Alexander (Tenn.) voted for the amendment. So did Independent Bernie Sanders (Vermont), and 27 Democrats. Including, I am proud to say, both Udall and Bennett of Colorado.

The amendment was attached to H.R. 627, the credit card legislation. The version of H.R. 627 passed by the House did not have anything like the Coburn amendment, but the 67 votes in the Senate (including a number of Senators who had been rated "C" or below by the NRA), indicates that the House would overwhelmingly support the proposal. Indeed, given that the anti-carry even lost Senators who had an "F" from the NRA, the House vote in favor might well go over 300.

Along with the widely-supported amendment (to the bill that would give D.C. a vote in the U.S.) to reform D.C. firearms laws, there is now a rather large number of Democratic Senators who are exceeding expectations, and on their way to earning much-improved grades on their next NRA report card. With the notable exception of Sen. Gillibrand, who appears to be doing her best to turn her 2008 "A" into an "F" for 2010.

103 Comments

[David Kopel, May 13, 2009 at 2:16am] Trackbacks

Preemption laws and leases of public property:

Here's a legal question that combines some of the favorite topics at the VC. David Nelson is the head of Stonewall Shooting Sports, the pro-gun gay rights group in Utah. At the upcoming Utah Pride Festival, Nelson wishes to carry a firearm lawfully, as Utah law authorizes him to do. However, the festival operators (a private organization) have a rule against carrying firearms at the festival. The festival takes place on public property, which is leased by the festival operators. The Salt Lake City police provide security for the Utah Pride event, and enforce the organization's rules, including the gun ban.

Utah's firearms preemption law states:

63-98-102. Uniform firearm laws.
(1) The individual right to keep and bear arms being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual's place of residence, property, business, or in any vehicle lawfully in the individual's possession or lawfully under the individual's control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is uniformly applicable throughout this state and in all its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section:
(a) "firearm" has the same meaning as defined in Subsection 76-10-501(9); and
(b) "local authority or state entity" includes public school districts, public schools, and state institutions of higher education.
(7) Nothing in this section restricts or expands private property rights.

Utah has another preemption law. It says:

76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.

Nelson argues, inter alia, that subsections (4) and (5) of the first statute leave Salt Lake City without any authority to restrict the carrying of firearms, yet Salt Lake City, by leasing public property to a private organization which bans guns, and by using local police to enforce that ban, is doing so.

Does Nelson have a valid legal argument? Does (7) save the Utah Pride's ban? Answers which supply specific legal authority will receive the highest grades.

110 Comments

[David Kopel, May 2, 2009 at 12:23am] Trackbacks

Possible Obama Supreme Court Nominees and the Second Amendment:

In the October 2008 issue of America's 1st Freedom, one of the NRA member magazines, I gave a brief overview of the Second Amendment record of some of the people who had been mentioned as possible Obama appointments to the Supreme Court: Sonia Sotomayor, Merrick Garland, Cass Sunstein, and Eric Holder. This is not, of course, a full list of all the people who have mentioned.

63 Comments

[David Kopel, April 29, 2009 at 12:01pm] Trackbacks

Reason Magazine goes too far:

Reason magazine sent me an e-mail asking for comments on their new essay by Nick Gillespie and Matt Welch about Obama's first 100 days. OK, Reason, you want to know what I think? I'm personally offended by the essay.

The essay begins: "So here we are, 100 days into the great eight-year triumph of Hope over Change, a new Era of Really Good Feelings in which only one thing has become increasingly, even irrefutably, clear: President Barack Obama is about as visionary as the guy who invented Dippin' Dots, Ice Cream of the Future. Far from sketching out a truly forward-looking set of policies for the 21st century, as his supporters had hoped, Obama is instead serving up cryogenically tasteless and headache-inducing morsels from years gone by."

Well, I happen to like Dippin' Dots!

Other than the outrageous slur on Dippin' Dots consumers--in effect, a form of hate speech against lovers of highly processed food--the rest of the essay is very good. The theme is that much of the Obama 100 agenda consists of reprising various failed policy initiatives from the Jimmy Carter era. Which just makes the Dippin' Dots attack all the more inappropriate, since Dippin' Dots were invented in 1988, during President Reagan's last term.

64 Comments

[David Kopel, April 29, 2009 at 10:38am] Trackbacks

Blogger reaction to Specter switch:

National Journal Online today has a collection of reactions from top political bloggers regarding Senator Specter's return to the Democratic party (which he had left in 1965). We asked to comment on both the short-term and the long-term. My comments: "Short-term: Will save the national Senate Republican old bulls a lot of money that they would have wasted in trying to rescue Specter in the Republican primary. Long-term: After the 2014 election leaves the Senate with a 50-50 split, Specter will quietly offer to switch back to Republican, on the condition that he be Judiciary Committee Chairman."

61 Comments

[David Kopel, April 28, 2009 at 3:40am] Trackbacks

The Compact to Destroy the Electoral College:

In a recent episode of the Independence Institute's television show "Independent Thinking," former Colorado State Senator Ken Gordon and I debate Gordon's proposal for Colorado to join an interstate compact against the Electoral College. Parts one, two, and three. Senator Gordon, as he always does, made an excellent case in support of his point of view.

In pointing to the dangers of a close popular vote election and the attendant recount, I mentioned Kennedy-Nixon in 1960, but I should have instead cited Garfield-Hancock in 1880, where the popular margin was less then ten thousand, but Garfield won the electoral vote decisively. All the more heartbreaking, from my point of view, since Winfield Scott Hancock was, along with Ulysses Grant, one of the two major party presidential nominees who was also a President of the National Rifle Association.

284 Comments

[David Kopel, April 27, 2009 at 2:49pm] Trackbacks

Ireland v. United Kingdom and the prosecution of Bush officials:

In all the chatter that has gone on regarding demands for prosecution of Bush administration officials under the federal torture statute, remarkably little attention has been paid to the case of Ireland v. United Kingdom--even though that case is discussed extensively in the August 1, 2002, Bybee memorandum which has been the subject of the such great controversy.

Although the memorandum has been criticized on other grounds (such as its facile assertions regarding presidential war powers), it cannot be criticized regarding its accurate presentation regarding Ireland v. United Kingdom.

That case arose from the UK's use of "the five techniques" in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a "stress position"; hooding; subjection to noise; sleep deprivation; and food and drink deprivation. In other words, quite similar to many of the techniques used by the CIA to interrogate captured terrorists.

The Grand Chamber of the European Court of Human Rights ruled that these techniques do not constitute "torture." For "although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." (Para. 168.) Instead, "recourse to the five techniques amounted to a practice of inhuman and degrading treatment." Accordingly, since Article 3 of the European Convention on Human Rights outlaws inhuman and degrading treatment, the Court ordered the U.K. to cease use of the five techniques.

Now, if you are a Department of Justice attorney analyzing the question of whether you can bring a case which will result in a conviction under the federal torture statute, you have to acknowledge numerous obstacles:

Although the Convention Against Torture, which has been ratified by the U.S. Senate, forbids both torture and "Other Cruel, Inhuman or Degrading Treatment," that treaty is implemented in U.S. domestic law by the federal torture statute, which outlaws only torture.

People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.

Now, if people want to argue that degrading treatment of captured terrorists violates some other federal law, maybe there is a case that can be made. It just strikes me as highly unlikely that a conviction could be obtained under the federal torture statute.

Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.

Of course if you want to invent your own set of facts--such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War--then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.

John Podesta's "impeach Bybee letter" appears to be unsupported on a crucial legal point:

A legal memorandum signed by Judge Bybee when he was the head of the Office of Legal Counsel and recently released by the Obama administration approved the use of cruel, inhuman, and degrading techniques, including waterboarding, slamming a detainee into a wall, depriving a detainee of sleep for up to eleven days at a time, and trapping a prisoner in a "confinement box" with insects in order to induce terror. The techniques endorsed by Judge Bybee’s memoranda violated U.S. law and our commitments under the United Nations Convention Against Torture.

It can certainly be argued that approval of the degrading techniques violated "our commitments under the Convention Against Torture." But as for the claim that the techniques "violated U.S. law," Podesta does not specify which particular law; if he's referring to the federal torture statute, his assertion that there was definitely a violation seems overstated. (Since the CAT is a ratified treaty, it can be called "U.S. law," but Podesta's phrasing seems to indicate that he is talking about something in addition to CAT itself.)

A conscientious DOJ attorney who is contemplating the possibility of a successful prosecution under the federal torture statute will undoubtedly be aware of the talking point that the Americans executed Japanese war criminals for waterboarding. Mark Hemingway has written on this topic at National Review Online. For the moment, let's put aside any factual differences in how the waterboarding was done by the Japanese and the Americans. If you follow Hemingway's links for the war criminals who were executed, and then click the "legal procedure" tab, you can find the particular crimes for which they were convicted. Some of them were convicted of crimes related to mistreatment of prisoners of war. But these convictions are for violating the laws of war. Under the laws of war, prisoners of war are not supposed to be subject to degrading treatment (e.g., wall-standing, noise) nor to torture. Accordingly, the convictions for the seven executed Japanese do not imply a legal determination that waterboarding by the Japanese constituted torture, as opposed to degrading and inhuman treatment.

If you want to make a case that it is a crime under federal law not to treat al Qaeda terrorists as lawful prisoners of war (which means that they are not even supposed to be interrogated against their will), go ahead and try. But that's going to involve a different statute (if you can find one) from the federal torture statute.

Over at the excellent international law weblog Opinio Juris, Australian law professor Kevin John Heller insists that prosecution of Bush officials would be straightforward and obvious. I suggest that it would be much much more difficult than the prosecution enthusiasts seem to admit to themselves.

It is sometimes claimed that under the CAT, prosecution is mandatory. But Article 7 of CAT states that after a referral of a matter to the prosecuting authority, "These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." Which means, in the context of the United States, that the prosecuting authority have essentially limitless discretion not to bring a case, and that discretion certainly includes choosing not to prosecute a case because of the daunting odds of obtaining a conviction.

In support of prosecuting Judge Bybee and other lawyers, Heller pens an interesting post about the Ministries case; in that case, some high-ranking German lawyers were successfully prosecuted for having approved the deportation of French Jews; the lawyers did not contest the allegation that they knew the deportations to be flagrantly illegal. To Heller, prosecuting the American lawyers is even easier than prosecuting the Nazi ones, "because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime."

Well, sure, if you think that you can prove that the American lawyers did not actually believe their own arguments. But the Ministries Case depended on the defendants not contesting the point that they knew the deportations were illegal; if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.

Related Posts (on one page):

Frivolous:
Suit filed over Dept. of Homeland Security Memo/"Policy" on Right-wing Extremists:

97 Comments

[David Kopel, April 16, 2009 at 2:36pm] Trackbacks

Peruvian village militia bleg:

One tactic of the Peruvian government, in its war against the Maoist terrorist organization that called itself "El Sendero Luminoso" (The Shining Path), was to supply arms to village militias which had already formed spontaneously. These village militias were known as "Rondas."

Sometimes Rondas created their own parallel judicial system, outside the formal legal system. Yet their community defense was very consistent with the Peruvian Constitution, which declares that the protection of the human person (a term from Catholic thought) is the supreme objective of the state, and that every person has the right to legitimate defense:

art. 1: “La defensa de la persona humana y el respeto de su dignidad son el fin supremo de la sociedad y del Estado.” art 2: “Toda persona tiene derecho:…§ 23. A la legítima defensa.”

However, the Rondas were also charged with human rights violations.

A similar policy is currently being implemented in southern Thailand, where the government has been supplying defensive arms to village militias for protection from Islamic terrorists. (The Thai situation is discussed at page 17 of my forthcoming article in the Connecticut Law Review, "Pretend 'Gun-Free' School Zones: A Deadly Legal Fiction."

I would like to learn more about Rondas. Well-informed commenters are invited to recommend sources in either English or Spanish.

50 Comments

[David Kopel, April 16, 2009 at 1:11am] Trackbacks

Guns, Explosions, Fires bleg:

Suppose that a ship's crew is fighting a gun battle with pirates. A stray bullet hits a storage tank. Could that bullet ignite a fire or cause an explosion by hitting:

the fuel tank?
crude oil?
liquid natural gas?
other commodities that might be shipped by sea, and if so, which ones?

Commenters who actually know an answer, and are not guessing, will be appreciated.

43 Comments

[David Kopel, April 15, 2009 at 5:07pm] Trackbacks

Montana Firearms and the Interstate Commerce Clause:

Montana's staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State of Montana, "is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce."

Further, "It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana."

For the reasons that Glenn Reynolds and I detailed in the Connecticut Law Review, I think that the Montana legislature is in line with the original understanding of the Interstate Commerce Clause, and with how the clause ought to be read today. But, obviously, that reading is not exactly a sure winner in today's courts.

97 Comments

[David Kopel, April 15, 2009 at 3:59pm] Trackbacks

Letters of Marque & Reprisal

Rep. Ron Paul urges that Congress use its neglected constitutional power to "grant Letters of Marque and Reprisal." Seems like a good idea to me.

Before commenting, please read the Politico article, which address various ways in the Letters might need to be updated from their 19th century predecessors. Especially welcome are comments about how well the Letters of Marque and Reprisal worked in the Early Republic, and what we can learn today from those historical experiences.

62 Comments

[David Kopel, April 14, 2009 at 3:45pm] Trackbacks

Colorado Tea Party information:

Contact information for some of the April 15 Tea Parties on the Colorado Front Range is here, on the website of the Colorado Union of Taxpayers (of which I am a member of the Board of Directors). Note that this is a non-exclusive list; I believe that there are also Tea Parties in Grand Junction and Colorado Springs.

As you will see, the state legislature's Republican Study Committee is climbing aboard the Tea Party bandwagon. The RSC chair, Senator Kevin Lundberg, has a strong record on taxpayer issues, compiling the 3d-best rating of any Representative in 2008.

79 Comments

[David Kopel, April 14, 2009 at 2:04pm] Trackbacks

Piracy bleg:

The VC discussions on anti-piracy policy in the last several days have raised the question of whether it would be a good idea for crews to be armed to resist the pirates. I invite commenters to supply specific answers to any of the following questions:

1. Which particular ports have rules against entry by a ship with firearms on board? Do these rules apply in territorial waters, so that a ship would not be allowed to enter a nation's waters while carrying firearms, and then transfer the firearms to a storage ship before proceeding into port?

2. Which specific shipping companies or maritime organizations have rules forbidding sailors to possess defensive arms? Are their other rules which generally forbid or restrict resistance to hijackers?

3. Which international laws, if any, might restrict or prohibit armed resistance to pirates? Does the legal analysis change if the pirates have a credible and well-known policy of not killing their captives?

3.5. What about the Law of the Sea Treaty, particularly articles 107 and 110?

4. What is the historical record about armed resistance to piracy by commercial ships?

5. In the past, when some arms have been allowed on ships, what kind of policies have been adopted to prevent mutinies or other misuse of arms? For example, having the guns locked in storage, with the only key in the possession of the captain? Were these policies generally successful?

Laws regarding military ships owned by a government are different; I am not asking about such ships. Only about ships engaged in commerce, or other non-government ships, such as private yachts.

All Related Posts (on one page) | Some Related Posts:

45 Comments

[David Kopel, April 13, 2009 at 1:19pm] Trackbacks

Expand the federal "hate crime" law?

In Greeley, Colorado, a trial will begin this week for Allen Andrade, who is accused of murdering Angie Zapata. Zapata (former first name "Justin") was a female transgender person. It appears that Zapata tricked Andrade into a sexual relationship. Andrade was led to believe that Zapata was a female in the conventional sense of the term; when he found out otherwise, he flew into a rage and beat Zapata to death.

Colorado law for sexual assault states that there is no "consent" if the consent "is induced by force, duress, or deception." Accordingly, Zapata may have perpetrated the crime of "unlawful sexual contact", which is a Class 1 misdemeanor and is subject to enhanced sentencing as an "extraordinary risk crime."

As detailed in an article in the Greeley Tribune, GLBT activists are hoping to use the Andrade prosecution as a springboard for enactment of a federal hate crime law for sexual orientation, the Local Law Enforcement Hate Crimes Prevention Act. The Greeley Tribune accurately quotes my views that hate crime laws in general are a bad idea, and that therefore expanding the laws is bad idea, regardless of arguments made about whether some particular group should or should not be included. That view is set forth in this 2003 Issue Paper.

However, if I were a lobbyist who supported the federal proposal, I would be wary about making Zapata into the face of a lobbying campaign. Matthew Shepard was entirely innocent, and was, accordingly, a sympathetic person around whom to build a campaign. In contrast, Zapata was (on what appears to be an uncontested version of the facts, although the trial might reveal otherwise) criminal whose death resulted from unjustifiable retaliation by the victim. Of course Zapata did not deserve to die, but people who perpetrate sex crimes by deception are not particularly sympathetic characters.

UPDATE: Some commenters were interested in the question of whether the linked section of Colorado law is applicable to the definition of "consent" for sex crimes. It is. See People v. Holwuttle (Colo. App. 1986). There is an additional set of definitions in Colorado law for sex crimes. In relevant part, it states, "'Consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act." The Holwuttle case approves of blending these two definitions into a single jury instruction. If we hypothesized that only the second definition applied, I do not think it changes the legal analysis. As applied to sex, "the nature of the act" certainly includes the sex of person with whom one is performing the act; maybe some bisexuals would be indifferent as to the other person's sex, but I think that the vast majority of people would consider a person's particular sex to a sine qua non for their consent to a sexual act with that person.

187 Comments

[David Kopel, April 12, 2009 at 2:29pm] Trackbacks

Hurray for the President and our Armed Forces!

Captain Richard Phillips jumped overboard, and was rescued by US Navy SEALS. Three pirates dead, the other one in custody. Details here.

217 Comments

[David Kopel, April 12, 2009 at 2:12am] Trackbacks

The Somali Pirates:

Strategy Page, one of the very best websites on military matters, explains why the pirates are immune from attack, and, under current conditions, will never be suppressed. (Further explanation here.) Ironically, while international law does not deter the pirates, it does deter their victims, and thus encourages piracy. Which is but a small example of how contemporary international law has been perverted into a tool against international commerce and civilization, whose protection was the very purpose of the creation of international law.

UPDATE: Wonderful essay by Mark Steyn on the same topic, noting, inter alia, the effect of U.K. government interpretation of the European Human Rights Act.

All Related Posts (on one page) | Some Related Posts:

The Administration's Pathetic Piracy Policy, or Freezing Asses
Just an Honest Fisherman
Why Crews Don't Resist ...
The Piracy Problem.
How to Handle Pirates:
The Somali Pirates:

78 Comments

[David Kopel, April 10, 2009 at 5:05pm] Trackbacks

The three cases that could determine Second Amendment incorporation:

In this week's Second Amendment podcast on iVoices.org, Jon Caldara and I discuss three different cases which could give the Supreme Court an opportunity to decide whether the Second Amendment is incorporated in the Fourteenth: the Chicago handgun ban; the Alameda County, California, gun show ban on county property; and the New York nunchaku ban. The MP3 is 11 minutes.

Last week's podcast discussed the New York Times article which claimed that Heller is "firing blanks." The week before, Caldara was guest-hosting an afternoon radio show, and we talked about whether Colorado should follow the policy of some other states, whereby people with concealed carry permits (which require a fingerprint-based background check) should be required to go through the instant check (a name-based computer check) when buying an additional gun.

In case you missed them the first time, here the two most popular podcasts we've ever done on iVoices. Both of them are still getting hundreds of listens per week: How to Interpret the Constitution. I interview University of Montana Law Professor Rob Natelson. We discuss originalism, and Natelson's recent articles. Nov. 24, 2008. 31 minutes.

Interview with Richard Pearson, Executive Director of the Illinois State Rifle Association. Oct. 14, 2008. Pearson has been lobbying on sporting and right to arms issues at the Illinois legislature since 1989. He has more first-hand knowledge of Obama's record on these issues than anyone except Obama himself. In the 20-minutes podcast interview, Pearson suggests that Obama's claim about his supposed record of support for sportsmen is extremely inaccurate.

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[David Kopel, April 10, 2009 at 11:03am] Trackbacks

Bloggers: Left/Right agree that Internet helps journalism. Disagree on whether the press is helping Obama:

In this week's National Journal blogger poll, the first question was "On balance, has journalism been helped more or hurt more by the rise of news consumption on the internet?" Eighty-nine percent of the Left and 65% of the Right said "helped more." I was among the minority who voted the other way. My comment: "News consumers have been helped, especially for national and international issues. Professional journalists have been hurt, since the number of jobs in New Media journalism is much smaller than the number of Old Media jobs which are disappearing."

Question two was "What do you think of the coverage of Barack Obama so far this year?" On the Right, 93% said "too easy," a position shared by only 17% on the Left. I voted "too easy," and added this comment: "Almost no accountability for Obama's flagrant breaking of his campaign promises about ethics and transparency. Very little coverage of his administration's endless string of diplomatic gaffes."

15 Comments

[David Kopel, April 10, 2009 at 3:42am] Trackbacks

Does the United States rule Taiwan?

Obviously not, de facto. Taiwan is ruled by the people of Taiwan, via their elected government. The Beijing dictatorship is working hard but patiently to destroy Taiwan's sovereignty, and to bring Taiwan under the rule of the unelected kleptocracy which currently oppresses China, Tibet, and the Uighers.

But as a pure matter of international law, who is the sovereign of Taiwan? Perhaps the United States military government. China exercised sovereignty over part of Taiwan beginning in the 17th century, and asserted (but did not exercise) sovereignty over the whole island for fewer than 20 years in the 19th century. In the late 19th century, China transferred Taiwan to Japan, which ruled Taiwan until 1945. The Japanese forces on Taiwan surrendered to the American military, and so by the established laws of war, the United States became the occupying power. In the 1954 San Francisco Peace Treaty, Japan renounced all claim to Taiwan, but the treaty did not otherwise specify the status of Taiwan, and so the U.S. remained in charge, de jure if not de facto, as it does to this day. So goes an argument you can find in the Harvard Asia Quarterly, among other places.

So some Taiwanese filed a case in which they asked the the U.S. Department of State be ordered to issue them U.S. passports; they argued that legally speaking, they are "U.S. nationals" but not U.S. citizens. On Tuesday, the D.C. Circuit Court of Appeals issued an opinion stating that the plaintiffs might be correct as a matter of law, but that the the Political Question doctrine prevented the D.C. Circuit from deciding the issue.

I think that the D.C. Circuit's decision on the Political Question doctrine was correct. And I realize that a U.S. affirmation of sovereignty over Taiwan would very likely lead to a war with China, and so such an affirmation should not be made without full debate in the political branches of government, including a vote of Congress. Nevertheless, the people of Taiwan are about the most pro-American, pro-democracy, and well-educated group as can be found anywhere on the planet. Yes, Ireland and Israel would be close contenders, but the U.S. has no legal claim to sovereignty over either of those nations. It would be a better world if Taiwan's politicians were (like the politicians in American Samoa) debating the terms of their legal relationship with the United States, rather than worrying about how to avoid being engulfed by the tyrants of Beijing, and turned into an island version of Tibet's hell on earth.

30 Comments

[David Kopel, April 9, 2009 at 7:06pm] Trackbacks

Harold Koh, "A World Drowning in Guns":

Many people are interested in Harold Koh's nomination to be State Department legal advisor, but not all of those people have access to Lexis, Westlaw, or a good law library. Accordingly, here are links to two important articles by Koh:

On American Exceptionalism, 55 Stanford Law Review 1480 (2003). In this article, Koh examines various definitions of American "exceptionalism", then provides his own, and proposes strategies to eliminate the inappropriate exceptionalism.

A World Drowning in Guns, 71 Fordham Law Review 2333 (2003). In this article, Koh lauds the international gun control effort, and criticizes John Bolton's invocation of the Second Amendment at the 2001 UN small arms conference. VC citation counters will be pleased to see citations to an article by Randy Barnett and one by me.

40 Comments

[David Kopel, April 7, 2009 at 4:39pm] Trackbacks

The Religious Left at Work: God Hates Secret Ballots:

I've just received seen an e-mail from the AFL-CIO, sent on behalf of Catholic Scholars for Worker Justice. The e-mail urges that "a scholar who supports Catholic social doctrine and its teachings on workers rights", to sign an on-line petition for the (misnamed) Employee Free Choice Act.

The e-mail says that EFCA may come up for a Senate vote before the Memorial Day recess. It also notes that "The Catholic weekly, America magazine, called EFCA the most important legislation in the past 72 years." America, which is run by the Jesuits, has long been very far to the left of most of the Catholic press in the United States, and of American Catholics. The right of workers to unionize is well-established in Catholic teaching. For example, in the 1891 encyclical Rerum Novarum, Pope Leo XIII stated:

The most important of all [civic organizations] are workingmen's unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers' guilds of olden times. They were the means of affording not only many advantages to the workmen, but in no small degree of promoting the advancement of art, as numerous monuments remain to bear witness. Such unions should be suited to the requirements of this our age - an age of wider education, of different habits, and of far more numerous requirements in daily life. It is gratifying to know that there are actually in existence not a few associations of this nature, consisting either of workmen alone, or of workmen and employers together, but it were greatly to be desired that they should become more numerous and more efficient. We have spoken of them more than once, yet it will be well to explain here how notably they are needed, to show that they exist of their own right, and what should be their organization and their mode of action.

Accordingly, laws which prohibit unions are a violation of natural law:

For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them; and, if it forbid its citizens to form associations, it contradicts the very principle of its own existence, for both they and it exist in virtue of the like principle, namely, the natural tendency of man to dwell in society.

I am unaware of anything in this encyclical, or anything else in formal Catholic teaching (a category which includes Papal encyclicals but does not include editorials in Catholic magazines) which says that workers should be forced to join (or pay dues to) a union which they do not wish to join, or which says that getting rid of secret ballot elections for unionization is a positive social good. Yes, I know that EFCA technically allows for secret ballots, but the purpose of EFCA's change in the "card check" rule is to eliminate both elections and secret ballots.

93 Comments

[David Kopel, April 3, 2009 at 10:59am] Trackbacks

Bloggers: Agree that energy changes coming; but disagree on auto company welfare program so far:

In this week's National Journal bloggers poll, the first question was "Do you support the Obama administration's handling of General Motors and Chrysler?" On the Left, 80% said "yes," while 87% of the Right said "no." My comment: The business of government is not running or subsidizing automobile manufacturers."

The other question was "What is the likeliest outcome in this Congress of the debate on energy and climate change?" Here, 33% of the Right expected "sweeping change," and 47% foresaw "incremental change." On the Left, 80% also believed that change is coming, but none of them expected it to be sweeping. I was among those expected sweeping change for the worse: "The result could cripple the recovery, prolong the recession for years and permanently weaken the economy."

7 Comments

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