Kopel's Corner weblog January-March 2010 Archive

Ten Rules for Dealing with Police

David Kopel• March 31, 2010 2:03 am

Outstanding new film, premiered at the Cato Institute last week. Watch it here. Lots of useful advice for law-abiding citizens about how to properly exercise their rights to refuse searches that are not based on warrants or probable cause, and other efforts to trick citizens into waiving their rights.

Categories: Fourth Amendment 157 Comments


Colorado Attorney General Explains the Obamacare Lawsuit

David Kopel• March 30, 2010 1:43 pm

My 23 minute podcast interview with Colorado Attorney General John Suthers is here.

Categories: Uncategorized 42 Comments


Self-hating Wolverine

David Kopel• March 30, 2010 1:14 am

Chapman Law School professor Hugh Hewitt runs an excellent blog, with plenty of stimulating commentary, even for people who disagree with Hugh’s viewpoint. Some people, however, were put off by Hugh’s adamant defense of the Supreme Court nomination of Harriet Miers. Discerning readers have learned to take Hugh’s predictions of Republican election wins with many grains of salt. But now I feel compelled to speak out at something that has long been a problem on Hugh’s blog,  and which just went far over the line.

Although Hugh is currently a Californian, he grew up in Ohio, and so he uses his blog and his national radio program to promote his endless enthusiasm for Ohio sports teams, predicting (not always accurately) victories by the Cleveland Browns and so on. As an Ohio man, Hugh also enjoys taunting Michigan, which is one of the things that Ohioans have long done to keep themselves amused. Fine, if that’s what makes him happy. But Hugh is also a member of the University of Michigan Law School class of 1983. Today, he celebrated the victory of the Miami of Ohio hockey team over the University of Michigan, in the final game of the NCAA regional tournament. If he wants to rejoice when the University of Toledo defeats Eastern Michigan University, that’s his privilege. But to root against–and to rejoice in the defeat of–one’s own alma mater seems to me very wrong.

There must be some conservative principle about being loyal to the institution that provided you with a fine education and helped make your professional success possible. I am sure that Edmund Burke would never have gloated over the defeat of the Trinity College football team or the Middle Temple hockey team, if those great institutions had football and hockey teams.

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53 Comments

How Many Global Deaths from Arms?

David Kopel• March 29, 2010 4:49 pm

That’s the title of a new article which I have just submitted en masse to law reviews. [Note: the full text hasn’t yet appeared on SSRN. So here’s a link to the full text via Berkeley Electronic Press.] Here’s the abstract:

Currently, the United Nations is drafting an Arms Trade Treaty to impose strict controls on firearms and other weapons. In support of hasty adoption of the Treaty, a UN-related organization of Treaty supporters has produced a report claiming that armed violence is responsible for 740,000 deaths annually. This Article carefully examines the claim. We find that the claim is based on dubious assumptions, cherry-picking data, and mathematical legerdemain which is inexplicably being withheld from the public. The refusal to disclose the mathematical calculations used to create the 740,000 factoid is itself cause for serious suspicion; our own calculations indicate that the 740,000 figure is far too high.

Further, while the report claims that 60% of homicides are perpetrated with firearms, our review of the data on which report claimed to rely yields a 22% rate. The persons responsible for the report have refused to release their homicide calculations, or any other calculations.

This Article also shows how a narrow focus on restricting firearms ownership continues to distract international attention from life-saving, viable solutions. We propose some practical alternatives which have already saved lives in war-ravaged areas.

My co-authors on this Article, as with many of my international law articles, are Dr. Paul Gallant and Dr. Joanne Eisen, who are Senior Fellows at the Independence Institute.

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Categories: Guns, International Law

Is the tax power infinite?

David Kopel• March 22, 2010 8:05 pm

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce  among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power?  I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759–60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.

In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.

Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed. Construing the tax power as less than infinite–as not encompassing the power to tax bedtimes or the decision not purchase a product–is strongly supported by the Ninth Amendment. This is so whether one agrees with Randy Barnett’s view of the Ninth Amendment (as an enforceable guarantee of natural rights) or with Kurt Lash’s (as a rule that enumerated powers should be narrowly construed so as not to violate natural rights, including the right of self-government in the states).

Finally, as Jack Balkin has ably argued, “Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility � but not the certainty of its redemption in history.”

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in intrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

p.s. PENNumbra had a good debate on the topic last fall, featuring Jack Balkin vs. Lee Casey & David Rivkin.

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Categories: Commerce Clause, Congress, Constitutional History, Economic Liberties, Federalism, Guns, Health Care, Necessary and Proper, Politics, Supreme Court, Taxes     77 Comments


The Stamp Act

David Kopel• March 22, 2010 6:37 pm

Received the Royal Assent and thereby became law on this day, in 1765. A spontaneous citizen movement, reinforced by state governments carrying out their duties to protect the constitutional rights and liberties of their citizens, mobilized to oppose the Stamp Act. They were told by their betters that repeal would never take place, and that they might as well accept what had been imposed. Although they succeeded in having the Stamp Act repealed, rather than just modified, Parliament came back a few years later with the Tea Act–which of course led to the activists getting the “Tea Party” name. The first Tea Party and its state government allies did not surrender, and eventually they prevailed. I don’t think that their 21st-century descendants will cease their efforts until they too have succeeded.

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97 Comments


“Cyber Civil Rights” Symposium

David Kopel• March 22, 2010 4:19 pm

Last year, Maryland law professor Danielle Citron published “Cyber Civil Rights” in the BU Law Review. Here’s the abstract:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. . . . Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.

. . . .

General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

Citron’s article detailed some particular cases of such abuses. As she acknowledged, the mob actions are solidly within the scope of existing criminal law and tort law. Nevertheless, she made the case that federal civil rights laws should be revised to cover Internet threats and defamation–since civil rights statutes provide attorney’s fees for a successful plaintiff, and since prosecutors would be more likely to bring criminal charges if the underlying offense has a civil rights association. She argues that “Just as changing circumstances justified curtailing the right of contracts in the 1930s, today’s networked environment warrants a rejection of free speech absolutism.”

Citron also proposed that website operators be civilly liable for the content of postings on their websites (by means of an exception to 47 U.S.C. § 230, the immunity statute), and that operators be required to collect and maintains ISP logs for all posters.

Last fall, the Denver University Law Review held a symposium about Citron’s proposal, featuring commentary from 11 scholars, plus a response from Citron. Rather than being required to submit a full-length article, the commenters for the on-line symposium were asked to provide a lightly-annotated essays. The full collection of commentary is here, as a PDF. (HTML versions of individual comments are here.)

Essays by Paul Ohm, Viva Moffett, and Wendy Seltzer suggest that mandatory ISP collection and civil liability might cause many problems than they would solve. In response, Citron acknowledges the force of these arguments. Accordingly, she suggests that the best remedies would be to amend federal civil rights statutes so that they fully cover the abuses she has described. She also suggests that some version of Notice & Takedown might be appropriate, although, as she detailed in her Boston University article, this has problems of its own.

Comments welcome, of course, but before commenting, please read at least one of the essays, or Citron’s original article.

Categories: Blogosphere, Computer Crime Law, Cyberspace Law, Uncategorized     7 Comments


Bloggers: Both sides critical of party chairs. Disagree somewhat, but not entirely, on health care chances, and Obama as a one-term President

David Kopel• March 18, 2010 8:49 pm

This week, the National Journal poll of political bloggers moves to a new spot on the NJ website, “The Hotline Blogometer.” Besides the weekly poll, the Blogometer contains a daily report on what leading liberal and conservative political bloggers are writing about the controversies of the moment. In this week’s poll, bloggers were asked “On a scale of 0 to 10, what’s the likelihood that Congress will pass health care reform?” Based on the information that was available in the earlier part of this week, the Left answered 7.8, while the Right said 5.6. Which is not terribly far apart.

I voted for 5, and wrote “In May 1994, President Clinton used the full force of his office to convince House Democrats to drive their majority off a cliff, by enacting a ban on so-called ‘assault weapons’ (ordinary firearms with cosmetically incorrect features). President Obama and House leadership seem determined to repeat a similar mistake, except on a much greater scale.”

Question 2 asked the Left “Is Tim Kaine an asset or a liability as DNC chairman?” The Right was asked about Michael Steele and the RNC. On both sides, only 31% voted for “asset.” The only writer who had anything good to say about Michael Steele was me: “Probably some of each. Still having trouble understanding that his job is to help the team, not to be the star.”

Finally, the bloggers were asked if Obama would be a one-term President. Thirty-one percent on the Left, and 71 percent on the Right thought so. Of course it’s far too early to predict with any confidence, but perhaps it would be accurate to say that his current chances for re-election are in the 30–70% range. He’s far from doomed, but not looking particularly solid right now either. I guessed the one-term would be the more likely result: “He will have plenty of opportunities in 2011–2012 to change his current self-destructive course. But it seems more likely that he will double down on his failures and his policies, which alienate the majority of the American people.”


Is the Slaughter Solution constitutional?

David Kopel• March 13, 2010 1:57 pm

Can the House vote to adopt a rule which “deems” that a particular bill has been passed, even if that particular bill has not been passed? If so, are there any limits to the adoption of House rules which eliminate voting on bills? For example, could the House at the start of a session adopt a rule which states that there will be no voting by individual members, and that the House during the next two years will “deem” to have been passed whatever the Speaker of the House deems to have been passed? Is the question justiciable?

I don’t have a fully-formed opinion on these topics, and would welcome well-informed comments. Please stick to this issue, not to the merits of the legislation. The most relevant constitutional text would seem to be the following:

Article I, sect. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I, sect. 5: Each House may determine the Rules of its Proceedings, . . .

Article I, sect. 7: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill

Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.

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Categories: Congress, Health Care 326 Comments

Bloggers foresee big political benefits in health bill. Split Ax vs. Rahm

David Kopel• March 12, 2010 12:57 am

This week’s National Journal poll of political bloggers asked left-leaning political bloggers “If Congress enacts something close to President Obama’s latest health care reform plan, how would that affect the Democratic Party in the midterm elections?” The right-leaning bloggers were asked the same question about the effect on Republicans. On the Left, 40% said that enactment would help Democrats a lot, and 27% said it would help a little. On the Right, 77% said it would help Republicans a lot, and 18% thought it would help a little. I thought it would help Republicans a lot, and wrote, “This is yet another example in which the best thing that Democrats can do to harm the Republicans in the next election is also the best thing that they can do for the country: namely, defeat Obamacare.”

The second question asked: “Would the Obama administration be better off if these individuals [David Axelrod and Rahm Emmanuel]  had more influence, or less influence?” On the Left, 64% favored more influence for Axelrod, and 100% wanted less influence for Emmanuel. On the Right, 93% wanted less influence for Axelrod, and 50% wanted more influence for Emmanuel. I wrote: “Rahm is politically brilliant, and has a sense of the possible. Imagine how much stronger Obama might be right now if he had followed Rahm’s advice to pass a variety of discrete fixes for health care rather than investing his entire presidency in a huge omnibus bill.” In contrast, “Axelrod’s recent interview in the N.Y. Times indicates that he is among the Obama devotees who have wrongly convinced themselves that the only problem with Obamacare is messaging, rather than substance.

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Categories: Health Care, Obama, Politics 70 Comments

Where and how to try Adam Gadahn:

David Kopel• March 7, 2010 6:03 pm

Taliban propagandist Adam Gadahn (a/k/a Adam Pearlman and “Azzam the American”) has been captured in Pakistan. In 2006, he was indicted for treason in the federal district court for the Central District of California. Both during and after World War II, federal courts were successfully used for treason trials for American citizens who had served as enemy propagandists or committed other acts of treason. If you would like some analysis of the precedents, as specifically applied to the Gadahn case, see Kristen Eichensehr, Treason’s Return, 116 Yale Law Journal Pocket Part (no. 229, 2007) (arguing that Gadahn should be prosecuted for “levying war” but not for “giving aid and comfort to the enemy,” because of free speech concerns);  Douglas A. Kash, The United States v. Adam Gadahn: A Case for Treason, 37  Capital University Law Review 1 (2008) (good summary of the WWII cases). As Kash concludes: “By bringing Adam Gadahn to a U.S. court of law to face criminal charges, while strictly preserving and affording him all rights reserved for all defendants, this nation can yet again show the world that despite the attacks on that fateful day, the pillars of justice upon which this Republic stands have not crumbled.”

Update: It now appears that the man captured was Taliban commander Abu Yahya, not Adam/Azzam Gadahn/Pearlman. So consider this post a head start for the discussion when Gadahn is brought to justice. Unless a drone takes care of the job first.

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Categories: Terrorism 52 Comments

“Reasonable regulation” and McDonald

David Kopel• March 2, 2010 9:17 pm

The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago:

JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?

MR. FELDMAN: Well, there is the reasonable regulation standard, there is an article by Professor Winkler that we cite in our brief that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes

JUSTICE GINSBURG: I thought that HellerHeller allowed for reasonable regulation.

MR. FELDMAN: Excuse me.

JUSTICE GINSBURG: I thought that the Heller decision allowed for reasonable regulation and it gave a few examples as Justice Scalia mentioned.

MR. FELDMAN: Right. Well, it’s just our view would be that what Chicago has done here, which is permit you to have a — permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own — that are most familiar with their own particular needs and their own particular problems, and in a position to balance the –the need for self-defense with the risk to the use of firearms — for violence, for accidental death and or suicide — that the City of Chicago has come up with something that is well within our tradition.

Some clarification here. Heller never adopted a “reasonable regulation” standard.  Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”). Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller’s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.

Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler  interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.

In a forthcoming Santa Clara Law Review article, Clayton Cramer and I argue that Winkler overstates the degree of state judicial deference to anti-gun laws; we also argue that the weak standard of review cases are plainly invalid as Second Amendment guides post–Heller–since the D.C. ban itself would have been upheld under the standard Winkler describes (and for which he advocated in a Heller amicus brief along with Erwin Chemerinsky).

In McDonald, BTW, Winkler joined the all-star professors team whose amicus brief advocated for Privileges or Immunities enforcement of the right to arms.

Regarding today’s oral argument, I thought that all three attorneys did a good job arguing on behalf of their respective positions. As it turned out, only Paul Clement found a majority of the Court favorable to his core argument, but that’s no strike against the skills of Gura or Feldman as Supreme Court advocates.

Categories: Guns, McDonald v. City of Chicago, Supreme Court 113 Comments


Why United States v. Miller was so badly written

David Kopel• February 27, 2010 4:00 pm

Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.

At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.

The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.

Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936–37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”

More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929–33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”

While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,

McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.

McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”

Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)

So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynolds' product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.

Categories: Anti-Semitism, Guns, Registration, Supreme Court


Goodwin Liu on the Second Amendment

David Kopel• February 25, 2010 8:58 pm

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.

. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act,  and the Americans with Disabilities Act.

. . .

United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then “there never will be a distinction between what is truly national and what is truly local.” 

[Paragraph on United States v. Morrison, Kimel v. Florida Board of Regents, and Alabama v. Garrett.] 

Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation’s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court’s velvet curtain.

The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. . . .

But even more astounding than the Court’s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress—and by extension, the American people—from playing a part in defining what the Constitution requires and what it permits. The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court’s authority to be the sole and final arbiter of constitutional meaning. More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within “judicially enforceable outer limits.”

The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. . . . 

When the Constitution says that Congress shall have power “to regulate commerce ... among the several States,” does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court’s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.

The net result is that Congress is now left to navigate a doctrinal minefield of magic words. . . . The next time I consider school safety legislation, should I wonder whether school safety is “truly national” or “truly local”?  And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a “congruen[t] and proportional” response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue? 

These questions begin to give you some idea of the anxiety I feel about the Court’s unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress’s views on those very constitutional questions.

. . . 

Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees—including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to “advise” before it “consents.”

Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227–29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

Categories: Congress, Constitutional Theory, Fourteenth Amendment, Guns, Judicial Nominations, Legal professor 102 Comments

Two Homeland Security agencies lost almost thousand computers in one year

David Kopel• February 24, 2010 12:26 pm

As detailed in an investigation by the Independence Institute’s Todd Shepherd. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) lost at least 985 computers in the 2008 fiscal year. ICE also lost 13 automobiles, while CBP lost 235 night vision scopes.

73 Comments


The story of the armed community organizers

David Kopel• February 22, 2010 6:03 pm

A few weeks ago, I linked to a picture of civil rights activist John Salter being attacked by a mob during a lunch counter sit-in during the 1960s. I also linked to a newspaper op-ed in which Salter explained how he and other civil rights workers used firearms for protection from Klansmen and other terrorists—when Klansmen knew that a homicide would not be witnessed by the news media. Since that blog post seemed to draw great interest from the readers, I thought that some persons might be interested in the longer version of Salter’s history of the role of armed self-defense in the Civil Rights Movement. The longer version is John R. Salter, Jr., “Social Justice  Community Organizing and the Necessity for Protective Firearms,” which is chapter 2 of The Gun Culture and Its Enemies 19–23 (William R. Tonso, editor, Merril Press,  1990.) (Merril Press is the press for the Second Amendment Foundation.) The chapter was first published as an article by Salter in Against the Current, July/August 1988. The magazine describes itself as an “analytical journal for the broad revolutionary left.” http://www.solidarity-us.org/current/publications.  Unfortunately, neither version is available on-line, so I will provide a summary.

In the mid-1960s, Salter was a full-time community organizer for the Southern Conference Educational Fund, in the very poor and highly segregated North Carolina black belt. Klan activity was heavy, and “Local law enforcement was almost completely dominated by the United Klans of America.” Klan dues were collected at the police station in Enfield.

Having received many death threats, Salter carried a Smith & Wesson .38 special in his attaché case. One night, on a long stretch of isolated country road, a Klan vehicle tried to force Salter’s car into a high-speed chase, by tailing him nearly bumper-to-bumper. “But I continued to drive sedately, mile after mile…with my revolver in my hand.” Salter and the other community organizers had put out word on the grapevine that they were all armed, and he surmises that this was the reason that the Klansmen did not try to shoot him that night.

Soon after, “a local civil rights stalwart, Mrs. Alice Evans, of Enfield, opened fire with her double-barreled 12 gauge, sprinkling several KKKers with birdshot as they endeavored to burn a cross in her driveway one night and, simultaneously, approaching her homes with buckets of gasoline.” The Klansmen fled and went to the hospital. Mrs. Evans donated the cross to the Smithsonian Museum.

Salter then recounts the story of the armed students and teachers who protected Tougaloo College, near Jackson, Mississippi, when Salter taught there in 1961–63. That story is recounted in the op-ed to which I linked in the previous post.

In late 1964, the Klan was scheduling a state-wide rally in Halifax County, near a black residential area. Rally posters were displayed at “most law enforcement offices in the county.” Salter and his fellow organizers asked the office of Governor Terry Sanford to provide state police protection for the black residents. Sanford’s office ignored the requests, until Salter went to Sanford’s office, got a meeting with the chief of staff, and told him that if the state police did not provide protection, “our people, armed to the hilt, would have no hesitation about utilizing armed self-defense in the event of Klan violence. Visibly shaken, the aide left me and conferred with Sanford. He returned quickly to promise the state police.”

Klan rallies continued for several more months in the area, and so did state police protection.

In 1965 in North Carolina, the FBI and Justice Department told Salter than an informant inside a United Klans klavern had reported on a plan to bomb Salter’s home in Raleigh. The FBI agent told Salter and his wife that the federal government could not do anything about it. Of course, “Local law enforcement was not reliable. Fortunately, we lived in the middle of a heavily armed Black community,” and Salter’s neighbors were “very protective.” They and Salter put out the word that the community was armed for defense. Thus, “We were not surprised when the bombing effort never materialized.”

In the summer of 1970, Salter was Southside Director for the Chicago Commons Association. As such, he was a community organizer for mostly “Black, Puerto Rican, and Chicano” people. On the South/Southwest side of Chicago, the racism was “often more violent and sanguinary than the Deep South of the previous decade. The Richard Daley machine was openly antagonistic to us . . .” In some but not all districts, the police were in league with the racists.

Death threats were frequent. When they were phoned in, Salter told the callers, “that I had a ticket for them, a pass to permanent eternity via my Marlin .444.” One day while Salter was at work and his wife was at home, some men with knives came to the home, but a vigilant neighbor with a revolver frightened them away.

In Chicago in 1973, Salter’s community network of nearly 300 block clubs “set up public citizen ‘watch-dog’ patrols.” These were generally unarmed, with “primary backup from a network of armed citizenry in the neighborhoods,” with whom the patrols stayed in contact via Citizens Band radio and telephone. “The effects of this well known campaign in deterring while racial violence were consistently substantial.” Soon, and as a result, politicians “forced in effect increasingly responsible and egalitarian law enforcement practices. But the patrols and vigilance of armed neighborhoods continued.”

In conclusion, Salter writers that firearms are not an absolute guarantee of safety for community organizers;  Medgar  W. Evers (NAACP Field Secretary for Mississippi) was murdered in June 1963, but being armed had helped him to live for nine years longer than most people expected he would when he took the job in 1954.

In sum, “I am stating categorically that the number of fatalities” was “much smaller” because “organizers and their grassroots groups”  were “sensibly armed for self-defense.”

Categories: Civil Rights, Guns, McDonald v. City of Chicago     48 Comments


Europe’s Roe v. Wade?

David Kopel• February 22, 2010 3:30 pm

An excellent student note by Shannon K. Calt, forthcoming in the Lewis & Clark Law Review, explains the case of A. B. & C. v. Ireland, currently pending before the Grand Chamber of the European Court of Human Rights. The case challenges the Eighth Amendment of the Irish Constitution, which prohibits abortion under almost all circumstances. The Amendment was added by the Irish people in order to prevent the judicial creation of a right to abortion, as in Roe v. Wade. As the note explains, subsequent case law had held that the Irish government cannot forbid Irish women from traveling to England to obtain legal abortions there. The note predicts two possible outcomes for the A., B. & C. case: 1. the ECHR will require Ireland to provide better post-abortion medical care to Irish women who need medical services after obtaining an English abortion. OR 2. The ECHR will create a right to abortion. The latter decision, suggests the note, would be predicated on the ECHR characterizing Ireland’s interest in its constitutional amendment as merely involving “morals,” rather than the protection of innocent life. A decision of the Grand Chamber (17 members, en banc) is binding on all nations which have signed the European Convention on Human Rights.

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Categories: International Human Rights Law     171 Comments


State court standards of review for the right to arms

David Kopel• February 18, 2010 9:08 pm

That’s that title of a forthcoming article in a Santa Clara Law Review symposium, by Clayton Cramer and me. We examine, in detail, scores of important cases, from Bliss v. Commonwealth in 1822 up to the present. We explain which cases can provide useful guidance to modern courts which must interpret the Second Amendment (and which cases use an approach is plainly inapplicable to Second Amendment analysis, post–Heller).

Our Article also addresses Adam Winkler’s influential and well-written 2007 Michigan Law Review article, which surveyed post-WW II state cases. Our article studies a broader range of cases, and gets into more depth on those cases, so it’s 93 pages long. It was even longer until the editors changed the typeface from Century Schoolbook to Times New Roman. Here’s the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of “reasonableness,” this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying “reasonableness,” many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of “police power,” are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

The article is founded on the tremendous research on state cases which Clayton conducted for his 1994 book For the Defense of Themselves and the State. That book was cited by the Washington Supreme Court in its new decision State v. Sieyes.

Categories: Guns, Militia     14 Comments


Podcast extravaganza

David Kopel• February 17, 2010 1:47 pm

Five new podcasts from the Independence Institute’s iVoices.org:

1. The University of Montana’s Rob Natelson on the Executive Vesting Clause.  Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes.

2. The Privileges or Immunities Clause and what it means for the Second Amendment. The Cato Institute’s Ilya Shapiro discusses his new law review article. 29 minutes. (The final version of the Shapiro-Blackman article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” was just uploaded to SSRN today.)

3. What Miller Meant. Oklahoma City University’s Michael O’Shea explains  the history and multiple meanings of United States v. Miller. 65 minutes. 

4. The International Hunter Education Association. IHEA’s Wayne East describes the IHEA’s good works in teaching safety and responsibility. And how you can take most of a hunter safety course on-line. 26 minutes.  

5. Weld County, Colorado, Sheriff John Cooke provides law enforcement perspective on three bills in the Colorado legislature: removing the Governor’s power to prohibit gun sales, transfers, or transportation during an emergency; a declaration that the federal government cannot apply federal gun control laws to guns manufactured in Colorado and which do not leave the state of Colorado (background checks on sales would still be required pursuant to Colorado law); and a bill to state that business owners on their own property have the same self-defense rights as do persons in their own homes. All three bills were supported by the County Sheriffs of Colorado. The first two bills were killed on party-line votes in a state Senate committee; the last bill is awaiting a committee vote in the House.

The first four are interviews I conducted last week. The last interview is conducted by Independence Institute’s Amy Oliver.

Categories: Constitutional History, Guns, Legal Scholarship 2 Comments


E-mail software bleg

David Kopel• February 9, 2010 1:09 pm

Microsoft Outlook has worked well for me on some computers, but has always been troublesome on one of them. I tried upgrading to the Outlook 2010 beta, and that’s been a horror story. Accordingly, I humbly solicit recommendations about an e-mail software program for accessing several POP accounts. Thanks.

45 Comments


“Birther” claim about Obama and the Bush National Guard hoax: Fruit of the same poisonous tree?

David Kopel• February 9, 2010 1:26 am

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

Categories: Bush, Media, Obama, Politics 177 Comments


How the right to arms saved the non-violent civil rights protesters

David Kopel• February 8, 2010 3:42 pm

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

Categories: Civil Rights, Guns 226 Comments


Bloggers estimate Dem House losses. Agree that more Obama question times would be good

David Kopel• February 8, 2010 1:22 am

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

Categories: Congress, Politics 57 Comments


Where is Gao Zhisheng?

David Kopel• February 4, 2010 12:41 am

One of the foremost attorneys in China, Gao Zisheng believed in the rule of law, and began to try to use the law to protect human rights. Senator Byron Dorgan (D-N.D.) describes what happened next:

He wrote an open letter to the United States Congress asking us to pay some attention to the lack of human rights that existed in China. For writing an open letter to members of the United States Congress in 2007, Gao Zhisheng, one of the most distinguished human rights — noted and distinguished human rights lawyers in China, was imprisoned for 58 days and brutally tortured.

Now, in 2009, he was detained 80 days ago by ten members of the secret police in China and has not been heard from since.

Let me tell you what his transpired. Mr. Gao Zhisheng has represented some of the most vulnerable people in China. They include persecuted Christians, coal miners and others. He always believed in the power of law; using the law to battle corruption, to overturn illegal property seizures, to expose police abuses, to defend religious freedom. He’s a devout Christian. He fought to protect those who engage in peaceful spiritual and religious practice in China.

And in 2005, they took away his license to practice law, closed his law practice. As I said, in 2007, they arrested him, threw him in prison and tortured him. Eventually he was released and brought back home and placed under police surveillance at home. The surveillance proved almost harsher than prison. In fact, a member of the communist police moved into their living room, prevented his daughter from going to school; his 16-year-old daughter barred from attending schools. 24-hour surveillance.

He wrote an open letter to the United States Congress asking us to pay some attention to the lack of human rights that existed in China. For writing an open letter to members of the United States Congress in 2007, Gao Zhisheng, one of the most distinguished human rights — noted and distinguished human rights lawyers in China, was imprisoned for 58 days and brutally tortured.

. . . Mr. Gao Zhisheng has represented some of the most vulnerable people in China. They include persecuted Christians, coal miners and others. He always believed in the power of law; using the law to battle corruption, to overturn illegal property seizures, to expose police abuses, to defend religious freedom. He’s a devout Christian. He fought to protect those who engage in peaceful spiritual and religious practice in China.

And in 2005, they took away his license to practice law, closed his law practice. As I said, in 2007, they arrested him, threw him in prison and tortured him. Eventually he was released and brought back home and placed under police surveillance at home. The surveillance proved almost harsher than prison. In fact, a member of the communist police moved into their living room, prevented his daughter from going to school; his 16-year-old daughter barred from attending schools. 24-hour surveillance.

One year ago, on February 4, 2009, Gao Zisheng was again seized by the Chinese government. No one except his Chinese captors knew whether he was dead or alive. Finally, after continuing international pressure from citizens and free governments, the Chinese apparently leaked word in January to an Australian newspaper that he is still alive.

Those readers who know their English legal history know the stories of the great lawyers during the Tudor and Stuart reigns, who used the law to challenge the abuses of the monarchs. Those readers know the debt that every free American owes to those lawyers, who sacrificed so much–and sometimes their lives–to establish the rule of law. During the reigns of the Tudors and Stuarts, the friends of a courageous lawyer who had been unlawfully imprisoned could resort to the Great Writ, the writ of habeas corpus, to secure a judicial hearing on his detention under the law.

There is no writ of habeas corpus in China, nor are there most of the other civil rights guarantees which are characteristic of a civilized nation with a free government. And so Gao Zhisheng’s writ of habeas corpus will not be issued by a Chinese court, but its moral equivalent can be issued by the free people of the world: commanding that the body of Gao Zisheng, in the Chinese government’s custody detained, as it is said, together with the day and cause of his caption and detention, be safely brought forth. If you would like to sign a petition to free Gao Zisheng, or contact your elected officials to urge them to press for his freedom, or take other steps, click here.

Categories: Habeas 19 Comments


Bloggers: Scaled-back health legislation is likely. Split on effects of Citizens United.

David Kopel• February 2, 2010 6:22 pm

Last week’s National Journal poll of political bloggers asked “What’s the most likely outcome this year of President Obama’s health care reform initiative?” The plurality choice on the Left, and the majority choice on the Right, was “Scaled-back legislation will be enacted.” I agreed: “Remember, even after the defeat of Hillarycare, many of its sub-elements were later enacted even by Republican Congresses. While time ran out on Hillarycare in the fall of 1994, this year the Obamacare supporters have nearly a year left to get something done.”

The second question asked about the political effects of the Citizens United decision. Seventy percent of the Left thought it would help Republicans a lot. Only 6 percent on the Right thought the same, while another 33 percent thought it would help a little. The leading choice on the Right was “not much impact.” That was my view, based on empirical experience: “Based on the experience of about half of the states, which never restricted the free speech rights of people in corporations, it’s hard to see much of a partisan impact from respecting the First Amendment.”

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Categories: Freedom of Speech, Health Care, Politics 45 Comments

Roscoe Pound on the Second Amendment

David Kopel• February 2, 2010 6:11 pm

“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).

Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.

Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.

Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908). 

As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.

Categories: Civil Rights, Constitutional History, Guns 110 Comments


Amar v. Natelson on the constitutionality of Obamacare

David Kopel• January 27, 2010 1:29 am

Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.

Categories: Commerce Clause, Constitutional History, Health Care, Originalism 22 Comments


Bloggers agree: Jobs would be best politically. So would House passing Senate health bill

David Kopel• January 24, 2010 6:58 pm

This week’s National Journal poll of political bloggers asked “Which of these pieces of legislation, if enacted, would help the Democrats’ political prospects in the midterm elections?” Bloggers could choose more than one. The leading choice for both Left and Right bloggers was “job creation.” The only other items which got more than 50% from either group of voters was deficit reduction (from the Right), and health care and financial industry reform (from the Left). I thought that most of the available choices would be helpful for the Democrats, if done properly: ““Cap-and-trade would be a political disaster. Taxing banks in general (rather than dealing with the subset that helped cause the meltdown) would be of little benefit. Greatly reducing the deficit now (as opposed to promising to reduce it later) would be enormously helpful. The financial/health/immigration/job items could all be helpful, but only if they are done in a fiscally responsible way, do not reward illegal aliens, and are moderate enough to pick up some significant GOP support.”

The second question was “Given the outcome of the Massachusetts Senate race, what would be best politically for [Democrats/Republicans] on health care reform?” Pluralities on the Left (for Democrats) and the Right (for Republicans) thought that House passage of the Senate bill would be the best political outcome. My view: “Politically speaking, the worse the better — passage of the Senate bill would be great, and passage of the House bill even better. For the good of the nation, however, it’s better to start over — and for the starting points to be allowing the purchase of insurance across state lines, ending the tax code’s bias for employer-provided insurance, and moving to a true insurance system, in which customers pay up front for routine costs, with insurance in reserve for extraordinary costs.”

Categories: Health Care, Politics 29 Comments


Advice for nervous state legislators, and candidates

David Kopel• January 20, 2010 1:41 pm

Get out and knock on doors. My father’s latest column explains why, based on his own experience as a candidate (with an 11–2 election record).  Six months of door-knocking–every two years–helped him far outperform his party, and win some tough elections.

The column also examines how the Colorado state Department of Regulatory Affairs might regulate medical marijuana dispensaries.

Categories: Politics     5 Comments


Debunking rumors about Texas gun shows

David Kopel• January 20, 2010 12:57 pm

Austin Gun Rights Examiner Howard Nemerov once again shows why he is one of the best journalists writing on the gun issue. His latest column debunks an Internet rumor that the BATFE forced a Texas gun show to allow sales only by federally licensed firearms dealers.

Categories: Guns     10 Comments


Cardozo Law Rev. symposium on McDonald v. Chicago

David Kopel• January 20, 2010 12:27 pm

Cardozo De Novo, the online companion to the Cardozo Law Review, has a symposium issue on firearms law and policy, with a focus on McDonald v. Chicago. Articles include The Second Amendment in the Living Constitution, by me; a critique of the Stevens dissent in Heller, by David Hardy; and a proposal by Michael Anthony Lawrence that all restrictions on liberty be judged according to a “reasonable time, place, and manner” standard.

In the comments section, feel free to discuss any of the articles.

Categories: Fourteenth Amendment, Guns     1 Comment


My take on the Massachusetts election

David Kopel• January 19, 2010 5:53 pm

From a segment on the Russian station for Radio Liberty. (Transcript, plus audio link.) For those of you who don’t read Russian, the short explanation is: The desire of voters to send a message of their disapproval of George Bush is considerably less significant than it was in 2006. Generally speaking, American prefer divided government.

Categories: Politics     44 Comments


Outstanding debate on same sex marriage

David Kopel• January 19, 2010 5:41 pm

This Monday, Jan. 25, at the University of Colorado at Boulder. Jonathan Rauch (National Journal, The Atlantic, Brookings) vs. Maggie Gallagher (National Organization for Marriage). Two outstanding, very articulate, intellectually rigorous advocates for their respective points of view.

Categories: Uncategorized     53 Comments


Coakley in free fall

David Kopel• January 18, 2010 5:27 pm

Reports a new poll for Politico, conducted entirely on Sunday night. Dorothy Rabinowitz and Ann Coulter have both explained why Coakley’s role in the Amirault case–involving the persecution and long-term imprisonment of plainly innocent people, reveal her to be utterly unfit to serve in any public office. That Coakley is now plainly lying about Scott Brown and rape is further proof of a character that appears to be remarkably scurrilous.

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Bloggers agree: Dems will keep House in November; Obama economic performance not good

David Kopel• January 15, 2010 10:28 am

This week’s National Journal poll of political bloggers asked for a prediction about how many House seats the Democrats would lose in the November 2010 elections. Significantly, not one of the bloggers predicted a large enough loss to change control of the chamber.  On the Right, 45% predicted a loss of 31–40 seats, while the rest predicted lower. On the Left, the median was in the 11–20 range.

The second question asked for a grade on President Obama’s economic performance. The Left gave him a C-, while the Right awarded a D-. I voted for F: “Taking the irresponsible Bush deficits and making them much, much worse. Spending vast amounts of the ‘stimulus’ on wasteful pork, giveaways and political payoffs rather than infrastructure or other useful projects. Continuing the Bush TARP program of transferring wealth from productive working people to the bankers who helped cause the meltdown. And turning the auto industry into a federal welfare program.”

Categories: Politics 98 Comments


Interpol Realism

David Kopel• January 15, 2010 12:55 pm

Over the past few weeks, there has been a lot of concern in some quarters about President Obama’s Executive Order extending certain legal immunities to Interpol. These concerns are misplaced. I am currently writing a research paper on Interpol, which will cover the immunities, and many other issues. In the meantime, some preliminary clarifications:

Interpol has no authority to make arrests or seize property. Interpol is purely an organization for data exchange and analysis. Interpol employees in the United States (or anywhere else) have no authority to conduct any activities except as allowed by the host government. The Obama Executive Order adds nothing to Interpol’s non-existent law enforcement authority.

Interpol’s entire US presence consists of a five-person office in New York City for liaison with the United Nations. Under the Obama order, the premises and documents of this NYC office are absolutely immune from search and seizure. Pursuant to the International Organizations Immunities Act, passed by Congress in at the time the United Nations was being set up, seventy other international organizations in the US have immunities identical to those now possessed by Interpol. The presence of the UN was obviously going to lead to the establishment of US offices for many international organizations, and Congress want to regularize the procedures and immunities for such organizations.

Unlike standard international organizations, Interpol was not created by a treaty, and its membership consist of police agencies, not nations per se. So one could make the legal argument that Interpol is not an international organization. However, both the United Nations and the United States have taken the position that Interpol qualifies as an international organization.

Interpol requested the full set of IOIA immunities in 2005. In 2008, the US State Department approved the request, but the White House did not get around to signing the Executive Order. It obviously was not a priority for anyone, nor should such a minor issue have been a priority.

So why did President Reagan, in 1983, grant Interpol some but not all of the available immunities? Some explanation of Interpol’s structure will help here. Interpol is headquartered in Lyon, France. Today it has over 600 employees, consisting of permanent staff, as well as employees from many different national law enforcement organizations who are “seconded” (loaned) to Interpol for a few years. Every one of the 188 nations which participates in Interpol has a “National Central Bureau” (NCB) which coordinates interaction with Interpol. The NCB offices are located in the home country, and they are staffed by employees of the home country, not by Interpol employees. The United States has the largest NCB, consisting of approximately 80 employees in Washington, D.C., plus an auxiliary NCB in San Juan. The NCB is responsible for transmitting the data which the US chooses to provide to Interpol, and thereby make accessible to the NCBs of other countries. Such data include the identification numbers of lost or stolen US passports, fingerprints or DNA for some criminals, and so on.

The NCB in the United States is not an international organization. It is a part of the US Department of Justice, and is subject to precisely the same laws as any other part of the Department of Justice. The NCB staff interacts with Interpol, but they are employees of the federal government, not of Interpol. Neither the Reagan nor the Obama Executive Orders apply to the NCB offices, nor could they.

As of 1983, Interpol had no staff or offices in the United States. However, a 1981 D.C. Circuit decision, Steinberg v. International Criminal Police Organization, 672 F.2d 927, held that Interpol could be sued in federal courts, because Interpol’s interaction with the US NCB created sufficient US contacts for a US court to assert long-arm jurisdiction.  The Circuit’s decision was written by the recently-appointed Judge Ruth Bader Ginsburg. Steinberg pleaded a very strong case for defamation:

Steinberg’s complaint identifies an Interpol document, titled “Blue International Notification 500/59-A3674,” describing him as a wanted international criminal who used the alias “Mark Moscowitz.” Interpol widely communicated the Notification, Steinberg alleges, to its liaisons, among them, the United States National Central Bureau (USNCB), now located in the Department of Justice, this country’s liaison with Interpol. In the summer of 1975, on learning of the document and Interpol’s transmission of it to liaisons, Steinberg asserts, he notified Interpol and twice offered proof that the Notification was erroneous. Despite the proof he offered, Steinberg further states, Interpol continued to publish the Notification and other statements associating Steinberg with “Mark Moscowitz.” It did so, according to Steinberg, until late July 1976, when Interpol finally conceded Leon Steinberg was not “Mark Moscowitz.” Steinberg seeks general and punitive damages for the substantial injury he alleges he has suffered as a result of the Blue International Notification.

Now vulnerable to US lawsuits, Interpol asked the Reagan administration to grant it IOIA protection. The Reagan administration at the time was beginning to vastly amplify the US relationship with Interpol. The consequences, over the long term, were a substantial increase in US contributions to Interpol, the US displacing France as the most influential nation within Interpol, and Interpol taking a major interest in counter-terrorism. Given the Reagan determination to work more with Interpol, it is not surprising that the administration granted Interpol’s request for IOIA immunity from civil lawsuits.

At the advice of the Department of Justice, the Reagan Executive Order did not grant complete IOIA immunities, because they were unnecessary. Interpol had no office in the US, and therefore had no need for IOIA’s protections of international organization property and files. The Obama Order simply recognizes changed circumstances; now that Interpol has a small US office, it is appropriate that Interpol have the standard immunities for international organization offices.

As I will detail in my research paper, I believe that the Reagan-granted civil lawsuit immunity should be partially rescinded, and, if necessary, Congress should revise the IOIA to allow for grants of only partial immunity from civil suits. Interpol is a much more competent organization than it was in 1975, when it allegedly defamed Steinberg. Nevertheless, Interpol does sometimes disseminate potential defamatory information without sufficient caution. First of all, Interpol distributes “diffusions.”  A diffusion is a document from one nation that a particular person is wanted for a particular crime in that nation. Diffusions are not reviewed for factual accuracy by Interpol staff, and they are not formally endorsed by Interpol. However, Interpol’s global distribution of the diffusions could, at least arguably, constitute participation in defamation, particularly when the diffusion is created by a nation with a notoriously corrupt and dishonest law enforcement system.

Interpol’s official Notices (such as the “Blue Notice” on Steinberg) are given a higher standard of care. (A Notice is not an “international arrest warrant.” A Red Notice is merely information that a person is sought by a particular country, for a particular crime, and the country will extradite him if given the opportunity. A Blue Notice is a request to collect additional information about a person in relation to a criminal matter. Nevertheless, at least occasionally, defamatory Notices are  distributed. Most notoriously, Interpol distributed three Red Notices from Kazakhstan containing false claims that some political opponents of the dictatorship had committed tax crimes. Although Interpol staff eventually opposed the Kazakhstan Red Notices, the issue was decided by the Interpol General Assembly (Interpol’s governing body), which narrowly voted in favor of the Red Notices. Perhaps if Interpol had faced a potential lawsuit for knowingly distributing defamatory information, the General Assembly would have voted differently.

However, the big topic of concern in the past several weeks has not been “Interpol can get away with defamation!!!!” The defamation immunity problem has existed for 27 years. The current concerns about the Obama Executive Order are about the dangers of unaccountable international police operating in the United States. These concerns are without merit. Interpol staff do not even carry guns, and they certainly do not engage in policing in the United States.

Categories: INTERPOL 35 Comments


Best unknown gun rights writer? Howard Nemerov

David Kopel• January 8, 2010 2:58 pm

The Examiner on-line newspapers have provided forum for a bevy of authors who write on Second Amendment and firearms policy issues. There are plenty of good writers among them, but my favorite is Howard Nemerov, who writes for the Austin Examiner. Howard´s columns are often data-rich (such as his latest piece, on the failures of police protection in Chicago). He is no mere commentator, but instead works hard to research the facts and advance the story. Among his recent articles are an admirably calm piece on the Interpol controversy, and an  examination of international data in which shows that there is no relationship  between gun ownership rates and suicide rates.  Howard is also my co-author of the Texas Review of Law & Politics article, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations.

Categories: Uncategorized


Bloggers: Romney is most likely Repub. nominee in 2012, and would be the strongest candidate

David Kopel• January 8, 2010 2:39 pm

This week’s National Journal poll of asked right-leaning bloggers to list the 5 most-likely Republican presidential nominees in 2012. Left-leaning bloggers were asked to name which Republican would be the strongest candidate. Mitt Romney won both races handily. I voted for Romney as most likely, but don’t think he would be the most likely candidate to win the general election: “The Republican lower tiers (e.g., Thune) might be much stronger in a general election than would be the better-known possibilities (e.g., Romney, Palin, Huckabee, Gingrich).”

Categories: Politics


Bloggers agree: Dems will keep House in November; Obama economic performance not good

David Kopel• January 15, 2010 10:28 am

This week’s National Journal poll of political bloggers asked for a prediction about how many House seats the Democrats would lose in the November 2010 elections. Significantly, not one of the bloggers predicted a large enough loss to change control of the chamber.  On the Right, 45% predicted a loss of 31–40 seats, while the rest predicted lower. On the Left, the median was in the 11–20 range.

The second question asked for a grade on President Obama’s economic performance. The Left gave him a C-, while the Right awarded a D-. I voted for F: “Taking the irresponsible Bush deficits and making them much, much worse. Spending vast amounts of the ‘stimulus’ on wasteful pork, giveaways and political payoffs rather than infrastructure or other useful projects. Continuing the Bush TARP program of transferring wealth from productive working people to the bankers who helped cause the meltdown. And turning the auto industry into a federal welfare program.”

Categories: Politics

 

 

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