Tags: abortion, European Court of Human Rights, Ireland
 

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 csases, 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

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

Categories: Uncategorized 45 Comments

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

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

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

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 Zisheng’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

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.”

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

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

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

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

Categories: Politics     5 Comments

Categories: Guns     10 Comments

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

Categories: Fourteenth Amendment, Guns     1 Comment

Categories: Uncategorized     239 Comments