Kopel's Corner weblog archive 2005

On this date in 1991, the Union of Soviet Socialist Republics ceased to exist. As detailed by University of Hawaii political science professor R.J. Rummel on his website "Powerkills", the 20th century was humanity's worst century of genocide and democide (the latter including mass killings not based on religion, race, or ethnicity). By far the greatest perpetrators of genocide were Communist regimes. Although a few of the Communist genocide perpetrators eventually developed hostile relations with the U.S.S.R., none of the Communist regimes would ever have come to power without the support of the Evil Empire that arose in October 1917, and which began styling itself as the "U.S.S.R." in 1922.

Rummel's website provides excellent quantitative data on genocide/democide all over the world. You might also want to check out Rummel's fine weblog "Democratic Peace."

A retrospective article on the Heritage Foundation website reminds us how bitterly President Reagan was attacked for his magnificent speech at Westminster in 1982. Reagan was mocked as a deluded idealist by so-called "pragmatists" who thought they knew better. Yet Reagan was right when he declared:

It is the Soviet Union that runs against the tide of history by denying human freedom and human dignity to its citizens...
...the march of freedom and democracy...will leave Marxism-Leninism on the ash-heap of history...

The collapse of the Evil Empire came sooner than even Reagan had hoped. The Cuban efforts to impose new dictatorships on Nicaragua and El Salvador failed completely. Solidarity became the elected government of Poland, and later yielded power to another government following a free election. The Warsaw Pact is now nothing more than a scrap of paper, and all the countries which suffered under its jackboots are making their way--some faster than others--towards stable and democratic government.

Within the former U.S.S.R. itself, the Baltic Republics are making great progress, while Central Asia languishes under tyranny, and Russia itself is retrogressing into dictatorship. Dictators still oppress many hundreds of millions of people, and are still perpetrating genocide and promoting terrorism.

Today's anniversary, however, should remind us that the true pragmatists are those who recognize that totalitarianism is in constant danger of collapse because of its own internal contradictions, and that if free nations remain strong and resolute, they can bring down a superpower.

32 Comments

December 29, 2005 at 3:13pm] 1 Trackbacks / Possibly More Trackbacks

"First the Saturday people, then the Sunday people."

In a January 1976 article in Commentary, titled "The Return of Islam," Bernard Lewis wrote, "In the period immediately preceding the outbreak of the Six-Day War in 1967, an ominous phrase was sometimes heard, 'First the Saturday people, then the Sunday people.'"

Today, on many pro-Israel websites and blogs, there are claims that the phrase is common in Arab graffiti, or as a placard in street demonstrations. I am curious about whether these claims are correct, or whether they might be recycled versions of Lewis's statement about 1967.

If you have information about the subject, please supply it in the comments. (Or e-mail it to me from the e-mail link on www.davekopel.org, if you prefer.) Comments are open only for the purpose of information about the quote "First the Saturday people, then the Sunday people." If you have personally seen such graffiti, or know of sources which have seen such graffiti, please supply the information. Conversely, if you have actual knowledge that the phrase is rare or non-existent in the Arab areas (particularly, areas near Israel) about which you have first-hand knowledge, please supply that information.

10 Comments

December 27, 2005 at 1:42pm] 2 Trackbacks / Possibly More Trackbacks

Hanukkah:

Today is the second day of Hanukkah, with the third day of Hanukkah beginning at sunset. Today is also the third day of Christmas, so I hope that the 96% of Americans who celebrate Christmas, as well everyone who celebrates Hanukkah, are continuing their festivities.

Last year while guest-blogging for Glenn Reynolds on MSNBC.com, I wrote the essay "Armed Jews Week," about how the Jews who fought the Nazis embodied the spirit of Hanukkah. A previous essay for NRO told the story of the original Hanukkah--how an informal Jewish militia led a successful revolution against the Syrians who were trying to wipe out the Jewish religion, and how the Jews--then as now--were brilliant military innovators who defeated a much larger force dedicated to their extermination.

Another essay for NRO looked at the religious issues surrounding the Maccabean revolt against the Syrians. The essay explained that the new independent Jewish state survived for only about a century, because its leaders abused two ethnic groups in the state: Idumeans (who followed the Jewish religion), and Samaritans (who did not observe that standard Jewish religion, but who did observe a very similar faith, based on the five books of the Torah, without the additional holy books which are part of mainstream Judaism).

The 2004 essay on "Armed Jews Week" led to many interesting e-mails. While the majority of e-mails were positive, the negative responses fell into two broad categories. One was composed of Jews who (displaying precisely the types of attitudes which the Zionist movement was intended to overcome) were offended at the idea that Jews have been (and still are) among the world's greatest warriors.

The second type of negative response ran along the lines of "don't you agree that Israel is doing the same thing to the Palestinians which the ancient Syrians did to the ancient Jews?" To which my answer is: not at all.

Unlike the Syrians, the Israelis are not attempting to eliminate another religion. The Israelis are not trying to wipe out the practice of Islam or Christianity in the disputed territories. (Although the Palestinian Authority has done a great deal to drive Christianity out of the West Bank). Nor was Israel's response to the Intifada the creation of a ancient-Syrian-style plan to ethnically cleanse the entire area by selling the whole Palestinian population into slavery. (Even though Sudan, Libya, Mauritania, and some other nations still have an active, public slave trade.)

Rather, Israel appears to have learned the lessons from the mistakes of its Maccabean kingdom. Today, any Jew--regardless of ethnic ancestry--who wishes to live in Israel is entitled to full and equal Israeli citizenship. To the extent that non-Jewish citizens of Israel are treated differently from Jewish citizens, they nevertheless enjoy much greater civil and political rights than almost anywhere in the Arab world. How many places besides Israel and Iraq can an Arab freely exercise the right to strong criticism of the ruling government? Or vote in an election in which the national government might lose power?

As for the West Bank and Gaza, Israel has voluntarily relinquished control over the latter, and the former came under Israeli control as a result of Jordan's decision to attack Israel in 1967. On this very date in 1995, Israel gave Yasser Arafat and his Palestinian Authority control over 90% of the West Bank, with the expectation that there would eventually be an independent Palestinian state living in peace with Israel. Arafat and his gang of terrorists gave only lip service to peace, and continued to teach anti-Semitism and the destruction of Israel in their schools (funded by the United Nations), and to wage a terrorist campaign against Israel.

The Maccabeans, as long as they could rule themselves, were willing to live in peace with Syria. If the Palestinians ever choose leaders who are willing to live in peace with Israel, then the independent Palestinian state will include not just Gaza, but also the West Bank.

In the meantime, the Israelis--with the support of freedom-loving people of all faiths all over the world--are not going to submit to the demands of evil-doers who seek to destroy the Jewish people and their nation. That is one of the eternal themes of Hanukkah.

Update: A commentator makes a very important point. Although many Jewish accounts refer to the Maccabees' opponents as "Syrians," the Jews were fighting the Selucid Empire (sometimes called the Greco-Syrian empire); the Empire, at its heights, extended from Afghanistan to the Aegean Sea. Although the Empire had controlled parts of Arabia, the Empire was, unlike modern Syria, neither culturally nor ethnically predominantly Arab.

31 Comments

David Kopel, December 22, 2005 at 4:38pm] 0 Trackbacks / Possibly More Trackbacks

Is it Illegal for David Letterman to Own a Gun?

Now that David Letterman is the subject of a restraining order barring him from harming a nutty lady who think he is sending her secret signals, the question arises of whether it is still lawful for Letterman to purchase or possess firearms. The relevant federal law is 18 U.S.C. § 922(g)(8). It prohibits gun possession (even holding someone else's gun momentarily) by "prohibited persons." Partly in response to the O.J. Simpson murder case (in which the victim was killed with a knife), Congress cracked down on gun possession by people subject to domestic violence TROs. Thanks to the 1994 Clinton crime bill, federal law now bans gun possession by any person who:

is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,...

Letterman would seem to fall squarely within the prohibition. The TRO states that must not "harm" or "threaten" the plaintiff. Likewise, Letterman is ordered not to block plaintiff in public places or roads. The order against harming the plaintiff would seem to be encompassed within the statutory language about any order against "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury."

The second question is whether Letterman is an "intimate partner" of the complainant. According to the motion for the TRO--which the judge apparently considered credible enough to merit issuance of a TRO--Letterman has asked the complainant to marry him, and communicates with her constantly. The complainant alleges a long-standing relationship, with frequent communication, and Letterman being so intimate with her as to demand that she shut off all contact with other people. Such conduct, if it really took place, could arguably make Letterman an "intimate partner" of the complainant.

The federal gun prohibition statute contains an exception:

this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

The TRO does not explicitly state that it is issued ex parte, but it does contain a finding that no notice to the defendant is required. The application for the TRO contains no evidence of service. So if Letterman never was properly served with the application, he's off the hook, and can still possess a gun. If we hypothesize that Letterman had been properly served (if that Letterman fails to comply with the court order to appear at the hearing in 10 days, to determine whether to make the TRO permanent, and the court does make the order permanent), there is one other statutory requirement. The court order must be one which:

(B)(i) includes a finding that such person represents credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The TRO contains no finding that Letterman is a threat to the complainant, so prong (i) does not apply. The TRO does, however, prohibit Letterman from harming or threatening the complainant, which would seem to fall within prong (ii), which requires that the court order explicitly prohibit physical force or the threat thereof against the intimate partner.

Accordingly, if the complainant has simply bothered to hire a New York process server to serve Letterman with a copy of the complaint, it would now be illegal for him to possess a firearm. If the court properly sent Letterman an order to appear at the hearing for making the TRO permanent, and Letterman fails to do so, and the court makes the restraining order permanent, then Letterman will be committing a federal felony if he every holds gun in his hands.

For years the feminist community has been exhorting the authorities always to "believe the victim" who complains of intimate partner abuse. Clearly their message has been heard in the First Judicial District Court of the state of New Mexico.

Related Posts (on one page):

Is it Illegal for David Letterman to Own a Gun?
Is This Some Solstice Fool's Joke?

75 Comments

December 20, 2005 at 3:55pm] 2 Trackbacks / Possibly More Trackbacks

Sudanese Genocide Gets Worse:

Professor Eric Reeves of Smith College is indefatigable in his determination to try to stop the genocide in Sudan. The SudanReeves website is an outstanding source of information. His latest posts detail how the situation in Darfur has gotten even worse in recent months, and how the African Union "peacekeeping" force (which is only supposed to protect foreigners, not Darfuris) is an abysmal failure even in its limited mission. The Khartoum dictatorship has been perpetrating genocide since 1992--first in the Nuba Mountains, then in south Sudan, and now in Darfur. Reeves predicts that the next target will the oil-rich eastern Sudan.

In the book "Darfur: Genocide Before Our Eyes" (published by the Institute for the Study of Genocide), Reeves makes the case for military intervention by NATO to stop the genocide. Military intervention would be a wonderful idea, and, indeed, there is a good international law argument that every NATO country is legally bound to intervene, since every NATO country is a signatory to the Genocide Convention, which imposes an affirmitive duty to "prevent" genocide.

But the prospects of NATO intervention are, unfortunately, nil. Among NATO governments, only the United States has even used the word "genocide" about the genocide in Darfur. At StrategyPage noted long ago, even a NATO-imposed "No-Fly Zone" in Darfur would do tremendous good, since it would prevent the Sudanese Air Force from supporting the ground attacks of the Arab janjaweed. But there is no indication that NATO will do anything more than continue to provide airlifts to the incompetent African Union forces.

In a forthcoming article in the Notre Dame Law Review, Paul Gallant, Joanne Eisen and I examine the Darfur genocide, and other genocides, and conclude that under existing international law, the victims of an on-going genocide have an over-riding right to acquire and possess defensive arms, notwithstanding any contrary national or international laws on the subject.

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December 15, 2005 at 11:26am] 3 Trackbacks / Possibly More Trackbacks

Illinois Class Action against Philip Morris Goes Up in Smoke:

This morning a divided Illinois Supreme Court overturned a $10 billion class action verdict against Philip Morris. The plaintiffs' theory was that the marketing of "light" cigarettes was a form of consumer fraud. Because the cigarettes have less tar, some smokers compensated for the lower quantity of tar in an individual cigarette by inhaling deeper, or smoking larger quantities. Thus, according to the trial court, Philip Morris deceived smokers into thinking the cigarettes were safer. The plaintiffs theory would seem to pave the way for lawsuits against low-calorie "lite" foods, since some consumers compensate for the lower calories of an individual serving by eating more food.

The majority pointed out that, even if one believes (as did the trial judge) the claim of plaintiffs' experts that "compensation is complete" (that every smoker of high-tar cigarettes who switches to low-tar smokes so much extra that total tar intake is the same), new smokers who started on light cigarettes would have nothing for which to "compensate," and therefore would inhale much less tar than than if they smoked "full-flavored" cigarettes.

The majority of the Illinois Supreme Court relied on section 10(b)(1) of the Consumer Fraud Act, which prohibits Consumer Fraud suits regarding conduct "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." In a pair of consent orders, the Federal Trade Commission had authorized the use of "light" and "low tar and nicotine."

The decision on narrow statutory grounds appears to be correct, and to have obviated the need to directly address the plaintiffs' outrageous theory that excessive consumer consumption of a "light" product provides a pretext for suing the manufacturer for fraud.

The majority did state that the plaintiff class appeared to have been overbroad and improperly certified. A special concurrence by two justices pointed out that plaintiffs, even if defrauded, had suffered no economic damages, especially because the class representatives continued to smoke, even after learning that "light" cigarettes were not safer (at least not if the smoker "compensates" by smoking extra).

The Supreme Court opinion is here, in PDF. The Illinois Civil Justice League, one the the nation's best tort reform groups, should have updates later today.

The trend towards lower tar and nicotine cigarettes, which began in the late 1960s with the encouragement of the FTC and Congress, has in fact made cigarettes substantially safer than they had been previously.

There is currently a dispute about whether low-tar cigarette smoke may have more mutagenic properties than higher-tar smoke (the trial judge found in the affirmitive), but, in any case, the trend to lower tar was based on the best scientific evidence available at the time. Moreover, the complaint that the reduction of a known danger (tar) may be partially offset by the increase in another danger is similar to complaining that a food which is advertised for reducing the quantity of something the consumer specifically wants to avoid (e.g., calories, carbohydrates, or salt) may also increase the quantity of some other undesirable item (e.g., a synthetic food additive which some people believe is harmful to health).

That the tobacco companies were sued for manufacturing and advertising a safer product is a good example of the perversity of modern tort law, and of the determination of anti-tobacco extremists to punish cigarette companies even when cigarette companies took affirmitive steps to reduce the dangers of smoking.

P.S. The Illinois Supreme Court was not supposed to, and did not, render any decision about the moral behavior of the tobacco companies. My personal belief though, is that the major tobacco companies, including Philip Morris, have engaged in reprehensible and immoral conduct--specifically, by entering into the multistate compact with the state attorneys general. As detailed in a lawsuit by the Competitive Enterprise Institute, currently pending in federal district court, the compact creates a cartel which protects the major companies from price competition by smaller companies--even though the smaller companies were never accused of the supposed misconduct for which the attorneys general sued the larger companies.

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December 12, 2005 at 12:52am] 0 Trackbacks / Possibly More Trackbacks

Cindy Sheehan Meets Her Muse:

The Islamist terrorists in Iraq are "freedom fighters" declares Cindy Sheehan. The September 11 terrorist attacks were entirely legitimate, according to Italian playwright Dario Fo, who shortly after September 11 wrote: "The great speculators wallow in an economy that every years kills tens of millions of people with poverty — so what is 20,000 dead in New York? Regardless of who carried out the massacre, this violence is the legitimate daughter of the culture of violence, hunger and inhumane exploitation."

Fo, who won the Nobel Prize for Literature in 1997, is also well-known for criticizing the Italian Communist Party for being too right-wing.

Now, the two famous admirers of terrorism have come together, in a new play by Fo, based on the life of Cindy Sheehan. "Peace Mom" stars Frances de la Tour, who recently portrayed the giantess Madame Maxime in "Harry Potter and the Goblet of Fire."

Personally, although I believe that Leni Riefenstahl was a very talented actress, her participation in any movie subsequent to "Triumph of the Will" would have made me enjoy the movie less. Likewise, although I enjoy the Harry Potter movies from Warner Brothers, I will enjoy future installments less if they include Ms. de la Tour, who, like Ms. Riefenstahl, has chosen to devote her considerable talents to promoting advocates of terrorism and mass murder.

59 Comments

[David Kopel, December 8, 2005 at 12:46am] 9 Trackbacks / Possibly More Trackbacks

Canadian Government to Ban Handguns:

Facing elections in late January, due to a no-confidence vote in Parliament that resulted from a corruption scandal, Canada's ruling Liberal party will announce a handgun ban on Thursday. All legally-owned handguns have been registered in Canada since the 1930s.

On September 22, 1998, Anne McLellan (the Liberal Minister of Justice) said "we're not interested in confiscating their guns, as long as they are legitimate gun owners, as long as they store them appropriately, transport them appropriately and so on ..."

That same day, in a debate in Canada's Parliament, Liberal MP John McKay (Scarborough East) stated,

Turning now to the motion, the first issue is the confiscation of private property. If the mover thought about that for more than five seconds, he would realize that a proper registration system gives security of ownership and enhances value. Far from confiscating, it does the exact opposite and legitimizes the owning of firearms. Certainly property registration does wonders for land titles and land values as it does for motor vehicles and other forms of property. Why would it not be true with firearms?

On August 26, 2004, Canada's Commissioner of Firearms spoke at the annual meeting of the Canadian Professional Police Association. He declared: "For years, firearm owners have expressed fears regarding the confiscation of firearms. This is a concern I heard loud and clear when we held consultations with firearms organizations last fall. But, in fact, those fears have not materialized."

In a 1976, interview in the New Yorker, the late Nelson Shields, who was then the head of the group which is now known as the Brady Campaign, explained registration's purpose:

The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition — except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.

(Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58.)

Related Posts (on one page):

More on Gun Control in Canada, Yesterday and Today:
Canadian Government to Ban Handguns:

141 Comments

[David Kopel, November 30, 2005 at 12:05pm] 0 Trackbacks / Possibly More Trackbacks

Brady Bill Anniversary:

On this day in 1993, President Clinton signed the "Brady Bill." The bill did not accomplish its original objective, as introduced in previous Congresses, of restricting private, non-commercial sales of handguns. Nor was the enacted bill structured, as previous versions had been, so that a police chief could indefinitely delay a handgun purchase.

Much of the support for the "Brady Bill" came from the claim--which was demonstrably false--that the bill would have prevented John Hinckley from buying the guns he used to shoot President Reagan and Press Secretary Jim Brady.

At the signing ceremony, President Clinton emotionally told the story of a friend of his who was an Arkansas gun dealer. The gun dealer sold a firearm to an escaped mental patient, who then murdered six people.

"My friend is not over it to this day," said the President, as the crowd applauded. "Don't tell me this bill will not make a difference. That is not true. That is not true."

"Not true" turned out to be a pretty good summation of the President's story, which he had throughout the 1992 campaign.

The Arkansas Democrat-Gazette (Little Rock) tried to track down the origin of the tale. Back in 1984, an Arkansas man named Wayne Lee Crossley used a .45 pistol and a shotgun to murder four people in a bar. Contrary to the Clinton story, Crossley did not buy the guns himself; he convinced a woman friend to buy the guns for him. The Brady Bill did nothing to prevent people with clean records from buying guns for anyone they want.

When the media started asking for substantiation of Clinton's story the White House stonewalled. But before the no-answers rule was put in force, one White House staffer admitted that the man might just have been treated at a mental institution, rather than having "escaped from a mental hospital." Simply having undergone mental therapy does not legally disqualify a person from owning a gun, under federal law.

While the President spoke movingly about how his "friend is not over it to this day," the dealer/"friend" who sold the guns died several years before Clinton spoke. (Timothy Clifford, "Clinton's Gun Story is a Murder Mystery," (New York) Daily News, Dec. 3, 1993.)

The Brady Bill imposed a five-government-working-day waiting period, during which local law enforcement could check the background of a handgun buyer. In 1998, the waiting period sunset, and was replaced by the National Instant Check System for all retail firearms sales. In 2004, Congress corrected a NICS administrative abuse which had been invented by the Clinton Administration. The "Tiahart Amendment" outlawed the Clinton practice (which had been administratively ended by the Bush administration) of using NICS to compile a national registration database of gun owners.

After the Brady waiting period was passed in 1993 (and set for expiration in 1998), gun prohibition lobbyists in 1994 successfully pushed for a federal ban on so-called "assault weapons" (which expired in 2004).

Almost immediately after passage of the "assault weapon" ban, Handgun Control, Inc. (which later renamed itself "the Brady Campaign"), announced "Brady II." Brady II would make permanent the handgun purchase waiting period which was set to expire in 1998, and would limits handgun purchases to one per month. The bill would also require all states to set up handgun licensing systems, with possession of a handgun permitted only to persons who pass federally-mandated safety training. All handgun transfers would be registered with the government.

Brady II would require every owner of a "large" ammunition clip to be licensed the same way that the federal government licenses machine gun owners. Simply to retain the magazines currently owned, a person would have to be fingerprinted, and pay heavy federal taxes. Brady II would also lower the ten-round limit to six rounds. As a result, the owner of a Colt .45 pistol and the standard seven-round magazine for the gun would need to go through the federal machinegun licensing system.

Under Brady II, anyone who owned at least twenty guns or 1,000 rounds of ammunition would be required to obtain a federal "arsenal" license. Licensees would be subjected to three unannounced police inspections per year. Persons who were required to have a license but did not obtain one would of course be subject to whatever enforcement action the Bureau of Alcohol, Tobacco and Firearms deemed appropriate.

For purposes of defining an "arsenal," firearms, firearms parts, and ammunition clips would all count as a "firearm." In other words, if a person owned three rifles, three handguns, two ammunition clips for each gun, and set of disassembled spare parts for the rifles and the handguns, he would have an "arsenal" consisting of at least 20 "guns." A thousand rounds of ammunition also count as a so-called "arsenal." So the hundreds of thousands of target shooters who pick up a pair of bricks of rimfire ammunition for $15 every few months would also become the owners of "arsenals."

Today, the Brady Bill is only a memory, and Brady II is so unfeasible as national legislation that it has not been re-introduced. Various components of Brady II, however, are still being pursued at the state and local level, sometimes successfully.

66 Comments

November 29, 2005 at 2:58am] 0 Trackbacks / Possibly More Trackbacks

Nobel Peace Prize Nominees:

The Nobel Committee has an interesting database of all the nominees for the Nobel Peace Prize from 1901 to 1951. Nominations are kept secret for 50 years. Nominees who, like unrepentant multiple murderer Stanley Williams, do not appear to have deserved the nomination include:

Mussolini (1935, by a French law professor, and by the law faculty at a German university);
Stalin (1948, by a Czech professor)(also, 1945 by a former Norwegian foreign minister, although the minister only wrote that Stalin was qualified for the prize, and did not formally nominate him);
Kaiser Wilhelm II (1911, by the President of UC Berkeley; 1917, by a German professor and by a Turkish law faculty);
Hitler (1939, by a member of the Swedish parliament, although the nomination was withdrawn before the Committee considered it);
Alfred Ploetz (the founder of racial hygiene in Germany; 1936 by a Norwegian parliamentarian, for warning that war would harm biological reproduction
Neville Chamberlin (somewhat plausibly in 1926 for his role in the Locarno Pact; less so in 1939, with 9 nominations for his role in the Munich Agreement).

54 Comments

David Kopel, November 28, 2005 at 3:13pm] 0 Trackbacks / Possibly More Trackbacks

Independence Institute teams up with Violence Policy Center:

And with the Alliance for Justice, the American Conservative Union Foundation, and 31 other non-profit organizations. We're all members of a coalition which filed an amicus brief in the upcoming January Supreme Court case of Wisconsin Right to Life v. Federal Election Commission. The brief argues that the censorship provisions of the McCain-Feingold law cannot constitutionally be applied to public charities, including the 35 amici. The well-written brief was produced by three attorneys for Perkins Coie, and offers an excellent argument about one aspect of the constitutional abomination that Congress enacted in 2002, and which President Bush--in derogation of his oath to defend the Constitution--signed notwithstanding his belief that the bill was unconstitutional.

12 Comments

David Kopel, November 28, 2005 at 2:37am] 1 Trackbacks / Possibly More Trackbacks

Tookie Williams and Clemency:

Proponents of the execution of Stanley "Tookie" Williams are making the argument that, no matter what Williams has done in prison, his conviction of an outrageous crime (a quadruple homicide) means that he ought to be executed. I disagree. Michelle Malkin and Tookie Watch both present extensive evidence about why Williams is a poor candidate for executive clemency. There is, at the least, some reason to wonder about the sincerity of Williams' alleged redemption. There is also the fact that he had never admitted his guilt for the homicides nor apologized to the victims' families.

That said, I think it is mistaken to say that a person who has committed a heinous crime which would merit execution or life in prison should always be subjected to such punishment. Consider, for example, the story of Alessandro Serenelli, who in 1902 murdered an 11-year-old Italian girl named Maria Goretti because she was resisting his attempt to rape her. As I've written elsewhere,

Unrepentant, Alessandro was convicted, and sentenced to 30 years in prison. [Since he was a minor, that was the maximum possible sentence.] In his eighth year of imprisonment, he had a vision of Maria. He saw a garden where a young girl, dressed in white, was gathering lilies. She smiled, and came near him, and encouraged him to accept an armful of the lilies. As he accepted them, each lily transformed into a still white flame. Maria then disappeared.

Alessandro's conversion was complete. When was released from prison after serving 27 years, his first act was to travel to Maria's mother to beg her forgiveness. He then found job as a gardener in a Capuchin monastery, a job he held for the rest of his life.

Along with 30 other witnesses, Alessandro testified as to Maria's sanctity during her Cause of Beatification. In 1950, she was canonized in a ceremony attended by a quarter million people, including her mother, the first mother ever to see her child canonized.

Marie Goretti is among the most famous saints in Italy; the story of Maria and Alessandro was the subject of one of the most-watched television programs in Italy in 2003.

It's possible to make arguments pro and con about whether Tookie Williams has enough in common with Alessandro Serenelli to be considered for clemency. I don't think so, but I can understand why other people might. My broader point is that even if (or, especially if), a person supports the death penalty or life without parole, it is possible that — at least in unusual cases — there can be post-conviction facts which might lead an executive with clemency power to decide to reduce the sentence for a prisoner guilty of an atrocious homicide.

A minority of Americans do not believe in the possibility of supernatural facts, and a great many Americans have an understandable skepticism about the convicted murderers whom Hollywood sometimes elects as special objects of sympathy. I hope, however, that public opposition to clemency for Stanley Williams does not degenerate into a broader attack on the practice of executive clemency, a practice which is a very ancient and honorable element of the checks and balances in a criminal justice system, and which has been greatly eroded in recent decades because governors and presidents fear being unfairly tarred as soft on crime.

48 Comments

David Kopel, November 27, 2005 at 5:01pm] 0 Trackbacks / Possibly More Trackbacks

NPR on Alito and Machine Guns:

The November 11 edition of NPR's "All Things Considered" features a segment on Judge Alito's decision in Rybar, in which Alito followed the Supreme Court's Lopez precedent to write that a federal ban on machine gun possession was not a valid exercise of the federal power to regulate interstate commerce. Guests on the program were Eugene Volokh, Kristin Rand of the Violence Policy Center, Erwin Chemerinsky of Duke Law School, and me.

33 Comments

[David Kopel, November 25, 2005 at 1:28pm] 0 Trackbacks / Possibly More Trackbacks

Buffaloed:

The new book Buffaloed: How Race, Gender, and Media Bias Fueled a Season of Scandal by Bruce Plasket (available from Amazon.com) attempts to debunk the huge national sexual assault scandal that surrounded the University of Colorado football team in 2004. My review of the book for the Rocky Mountain News finds that Plasket is on-target with many of his charges, but he also overstates his case and ignores contrary evidence.

One point about which Plasket is clearly correct in his criticism of media malfeasance is an incident I wrote about in early 2004, when the media treated some unsubstantiated hearsay accusations about two anonymous CU players as if they were plainly true. Likewise, as Plasket accurately notes (and I wrote about earlier this year) the media gave scant attention to the exoneration of two CU football players who were accused of raping a woman they met at a bar in 2003.

23 Comments

David Kopel, November 22, 2005 at 4:22pm] 0 Trackbacks / Possibly More Trackbacks

"We all do extoll Thee, Thou leader in battle":

A wonderful article by Melanie Kirkpatrick in today's Opinion Journal details the history of the Thanksgiving hymn "We Gather Together." Originally written in Dutch for an already-familiar melody, the hymn was a celebration of the victory of the Dutch (who were Calvinists) at the 1597 cavalry Battle of Turnhout, in their decades-long war for national independence against Catholic Spain. Turnhout was the first time the Dutch had defeated the Spanish in an open-field battle.

John Lothrop Motley, in his 1860 masterpiece History of the United Netherlands, 1597-98 explained the significance of Turnhout:

The true and abiding interest of the battle is derived from is moral effect, from its influence on the people of the Netherlands. And this could scarcely be exaggerated. The nation was electrified, transformed in an instant. Who now should henceforth dare to say that one Spanish fighting-man was equal to five or ten Hollanders? At last the days of Jemmingen and Mooker-heath needed no longer to be remembered by every patriot with a shudder of shame. Here at least in the open field a Spanish army, after in vain refusing a combat and endeavouring to escape, had literally bitten the dust before one fourth of its own number. And this effect was a permanent one. Thenceforth for foreign powers to talk of mediation between the republic and the ancient master, to suggest schemes of reconciliation and of a return to obedience, was to offer gratuitous and trivial insult, and we shall very soon have occasion to mark the simple eloquence with which the thirty-eight Spanish standards of Turnhout, hung up in the old hall of the Hague, were made to reply to the pompous rhetoric of an interfering ambassador.

Because the Dutch won the war, they were able to build in the 17th century the first nation in the modern world which practiced religious tolerance. The religious freedom which we enjoy today in the United States was won for us, in part, by the brave cavalrymen of Prince Maurice's army who risked (and, in some cases, lost) their lives against the larger Spanish force.

Like Passover, Thanksgiving is a time to reflect on the debts of thanks we owe to previous generations which fought (in various ways, including literally) for freedom, and, especially, to God for leading them in their fight. Thanksgiving in 2005 is also an especially appropriate time to reflect on our own contemporary obligations to ensure that the sacred light of religious freedom is never extinguished, as our nation is now engaged in a world-wide war against an enemy determined to destroy that freedom.

"We gather together to ask the Lord's blessing,
He chastens and hastens His will to make known;
The wicked oppressing now cease from distressing,
Sing praises to His name - He forgets not His own.

Beside us to guide us, our God with us joining,
Ordaining, maintaining His kingdom divine,
So from the beginning the fight we were winning;
Thou, Lord, wast at our side, all glory be Thine.

We all do extol Thee, Thou Leader in battle,
And pray that Thou still our defender wilt be.
Let Thy congregation escape tribulation!
Thy name be ever praised! O Lord, make us free!"

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Charles De Gaulle and the Flame of French Resistance:

Today is the anniversary of the 1890 birth of Charles De Gaulle, perhaps the greatest French leader since Charlemagne. His greatest moment came shortly after the French government had surrendered to the Nazis. In a radio broadcast from London, he delivered what would become France's most famous speech, the "Appeal of June 18." The speech concluded:

Believe me, I speak to you with full knowledge of the facts and tell you that nothing is lost for France. The same means that overcame us can bring us to a day of victory. For France is not alone! She is not alone! She is not alone! She has a vast Empire behind her. She can align with the British Empire that holds the sea and continues the fight. She can, like England, use without limit the immense industry of United States.

This war is not limited to the unfortunate territory of our country. This war is not finished by the battle of France. This war is a world-wide war. All the faults, all the delays, all the suffering, do not prevent there to be, in the world, all the necessary means to one day crush our enemies. Vanquished today by mechanical force, we will be able to overcome in the future by a superior mechanical force.

The destiny of the world is here. I, General of Gaulle, currently in London, invite the officers and the French soldiers who are located in British territory or who would come there, with their weapons or without their weapons, I invite the engineers and the special workers of armament industries who are located in British territory or who would come there, to put themselves in contact with me.

Whatever happens, the flame of the French resistance not must not be extinguished and will not be extinguished. Tomorrow, as today, I will speak on Radio London.

A special section of the Charles De Gaulle website provides more information, and the full text, in French. My National Review Online article about the speech is here.

France's current situation is not as terrible as its position on June 17, 1940, but modern France has, in effect, surrendered sovereignty over a significant portion of its cities to Jew-hating totalitarian thugs. I hope that the French of the early 21st century will, as did so many of their parents and grandparents, develop the nerve to resist and to fight back in the current world-wide war against another manifestation of totalitarian Evil.

UPDATE: For those of you looking for more information on French anti-Semitism and the violent "youths" of the French suburbs, here's a start: NY Sun, Jan. 21, 2004 (article by French journalist, "French Muslims of Arab descent are usually religious Muslims and unreconstructed anti-Semites."); NY Times, Nov. 18, 2003 (blog reprint)("Reflecting concern that disaffected Muslim youths are behind anti-Semitic acts in France, President Jacques Chirac on Monday called an emergency high-level meeting to approve measures to stop attacks on Jewish sites."); Jerusalem Center for Public Affairs ("Youth from the immigrant community also have prevented, in many schools, the teaching of the Shoah."). If you want a longer treatment of the subject in French, read the books Les territoires perdus de la République and France, prend garde de perdre ton âme, which detail the direct connection between the rise of anti-Semitism in France and the disaffected "youths."

Of course there will be many people who will see the evidence, and attempt somehow to deny it. Others will try to make excuses for the Jew-haters -- as if attacking Jews were somehow an understandable response to the French unemployment rate. But General De Gaulle recognized, as does Mr. Sarkozy, that the war against the Jews is merely an advanced battle in a war against Western Civilization.

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Rudyard Kipling on Gun Control

"When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said 'Stick to the Devil you Know.'"

Rudyard Kipling, "The Gods of the Copybook Headings" (1919). The full poem is about the perpetual folly of mankind in forsaking the elemental truths learned in school (the gods of copybook headings) in favor of seductive, but ultimately destructive, utopian teachings (the gods of the market place). For example,

"In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: 'If you don't work you die.'"

Related Posts (on one page):

More Kipling on Gun Control and Other Matters:
Rudyard Kipling on Gun Control

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Kuwaiti Gun Prohibition

Gun News Daily links to an article from Arab Times reporting that Kuwait has raised the penalty for gun possession from a five year sentence to a ten year sentence. Kuwait bans all firearms possession, except that the wealthy and well-born have a very limited ability to acquire hunting guns.

Regarding gun control, the policy of the Kuwaiti royal family for Kuwait appears to the same policy that Saddam Hussein had for Kuwait, except for milder penalties. Hussein had decreed the death penalty for any Kuwaiti possessing firearms without his permission, and had ordered that all guns be surrendered to the Iraqi army.

After Americans died to put the Kuwaiti royal family back on the throne, one royal family member announced, immediately after the cease fire: "The first thing we must do is to disarm the resistance to restore order." In other words, take the guns away from the brave Kuwaitis who had been fighting for their homeland, in order to assure the continued rule of a royal family that danced away the war in Cairo nightclubs.

Once back in Kuwait, Interior Minister Hamoud Sabah decreed a 15 year prison term for citizens who fail to surrender their guns. (Since the, the penalty has apparently been reduced and then recently increased.) Since the Minister's decrees have been repeatedly ignored, the government enforced the ban with house-to-house searches.

Said one Kuwaiti resistance fighter: "We trust no one; the guns are the only protection we have from the Palestinians and the government. We earned these guns. We stayed here and fought. The government didn't." [Before 1991, Kuwait had a huge population of Palestinian guest workers, many of whom supported the Saddam invasion. Afterwards, they were expelled.]

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Luther and the Christian Duty to Defend Innocents

The Wisconsin legislature is currently considering adopting a concealed handgun licensing law, similar to the laws in 38 other states. The legislature is acting in part because the Wisconsin Supreme Court (as I detailed in an Albany Law Review article) ruled that Wisconsin's statutory ban on concealed carry violates the state constitution's right to arms clause. The court urged the legislature to consider statutory reform.

Opposed to reform is Rev. Sue Moline Larson, who is director of the Lutheran Office for Public Policy in Wisconsin. On a November 13, The Capital Times & Wisconsin State Journal published her op-ed "Most women here don't want it: Neither would Martin Luther."

It seemed astonishing for Rev. Larson to claim to know Luther's opinion on a bill written more than four centuries after his death. Most of Rev. Larson's op-ed was a recitation of the typical bogus statistics propounded by the gun prohibition lobby. Regarding Luther, her argument Luther was:

"Martin Luther recognized that every person is both saintly and sinful, capable of the most exalted acts of goodness and the most depraved despotic acts of criminality. Good people may have more disciplined control of their impulses, but good people can drink too much and become threatening and belligerent, fall into depression and lash out in anger and despair, or have frightening experiences that trigger hasty and harmful behaviors.
...
The Evangelical Lutheran Church in American [sic] is guided by a vision in which people are free from violence, justice is done and the common good is realized."

Whatever may be said about Rev. Larson's "vision in which people are free from violence," it quite plainly is not the vision that Martin Luther articulated.

In Luther's lengthy commentary The Sermon on the Mount (written in 1530, and published 1532), Luther argued that an individual Christian was forbidden to defend himself. A Christian could not defend himself with a sword, and he could not even defend himself by going to court.

In contrast to the Christian as individual, wrote Luther, there was the "Christian-in-relation" who had an "obligation" to "some other person, whether under him or over him or even alongside him, like a lord or a lady, a wife or children or neighbors, whom he is obliged, if possible, to defend, guard, and protect." For the Christian-in-relation, it was "ridiculous" to say "turn the other cheek"—like "the crazy saint who let lice nibble at him and refused to kill any of them on account of this text, maintaining that he had to suffer and could not resist evil."

A superior's duty to the people under him or her came from "the imperial or the territorial law." Only a "crazy mother" would not defend her child from a dog or a wolf. Christ "did not abrogate this duty, but rather confirmed it."

"Similarly, if a pious citizen sees violence and harm being done to his neighbor, he should help to defend and protect him. This is secular business, all of which Christ has not forbidden but confirmed."

In short, Luther did not imagine, at least in earthly world before the end of time, some utopia free of violence. To the contrary, he recognized that violence (from wolves and from human predators) existed, and he insisted that good Christians had a duty to use force to defend their neighbors against such violence.

Because of Luther's realistic understanding of human nature, he was also an advocate of the well-established Christian tradition of Just War. Directly rebutting pacifists, Luther wrote "Whether Soldiers, Too, Can Be Saved" in 1526, and answered in the affirmative:

"But what are you going to do about the fact that people will not keep the peace, but rob, steal, kill, outrage women and children, and take away property and honor? The small lack of peace called war or the sword must set to limit, to this universal, worldwide lack of peace which would destroy everyone."

Much more reluctantly, Luther eventually endorsed the right of revolution against tyranny, in extreme circumstances. In the 1531 "Warning to His Dear German People," Luther encouraged armed resistance to the Holy Roman Emperor, who was attempting to extinguish the Reformation by armed force:

"...when the murderers and bloodhounds wish to wage war and murder, it is in truth no insurrection to rise against them and defend oneself….Likewise, I do not want to leave the conscience of the people burdened by the concern and worry that their self-defense might be rebellious…. …self-defense against the blood-hounds cannot be rebellious."

It's an interesting question whether Luther's writings on resistance in 1531--which presumed that the right of self-defense was obvious--represented a step away from his 1530 text denying that Christians could defend themselves. But what is indisputable about Luther is his belief that good Christians sometimes had an affirmtive duty to use violence--in defense of others, in just wars, and in resistance to tyranny. It is preposterous for the Religious Left of the 21st century to tell people that Luther would have been against a law which allows people, under a detailed regulatory system, to carry arms for the defense of their families and other innocent people, when attacked by animals or by criminals.

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New Trial for Andrea Yates:

Andrea Yates, the Texas woman who was convicted of murdering her five children, is going to get a new trial. The result seems correct, because the original trial was tainted by testimony from prosecution expert Dr. Park Dietz, who claimed that Yates might have inspired by a particular episode of "Law and Order." There was no such episode.

In the retrial, I hope that Yates does not enjoy another outpouring of sympathy from misguided feminists, such as the Texas chapter of the National Organization for Women, which organized a candlelight vigil on her behalf. As I detailed in 2001, several nations--including Great Britain, Canada, Italy, and Australia--have de facto de-criminalized infanticide perpetrated by mothers. The minimal punishments (mandatory counseling and probation rather than prison time) are an extreme and deadly version of the soft bigotry of low expectations. I strongly hope that Americans resist the claims of people who want to give a free pass to murdering mothers under the theory that the stresses of parenthood are an excuse of premeditated multiple homicide.

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Kristallnacht and Arms Control:

Today is the anniversary of Kristallnacht, the infamous anti-Jewish pogrom in Nazi Germany. In Nazi Firearms Law and the Disarming of the German Jews (Arizona Journal of International & Comparative Law), Stephen Halbrook details how Kristallnacht was the culmination of years of Nazi success in disarming their opponents by using the "moderate" gun licensing and registration laws which had been enacted by the Weimar Republic. During the Kristallnacht pogrom, new regulations were introduced which totally forbade Jews to possess firearms, edged or pointed weapons, and blunt weapons. A magazine article by Halbrook, Registration: The Nazi Paradigm, examines Nazi gun control polices both in Germany and in conquered nations.

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The French Educational System's Role in the Riots:

A few days before the riots began, Le Figaro's weekly France-Amerique edition published a disturbing article detailing how French public school textbooks justify terrorism. The article is a summary of the new book Élèves sous influence by Barbara Lefebvre and Éve Bonnivard, published by Editions Audibert, and which details how French high school and college textbooks treat terrorism. The article is Quand les livres scolaires "expliquent" le terrorism: Les manuels d'histoire réduiraient le djihad islamique à une contestation de l'Oncle Sam, by Cécilia Gabizon. (When schoolbooks "explain" terrorism: History textbooks reduce Islamic jihad to a dispute with Uncle Sam.)

Summarizing Élèves sous influence, Gabizon explains that textbooks say almost nothing about the role of Islamic fundamentalism or theocracies in their explanation of terrorism. Rather, terrorism is explained as "l'arme des faibles" (the weapon of the weak), used by people who cannot frontally attack the great powers: the United States and Israel. Textbooks criticize the attitude of condemning only terrorists, and not their enemies. Islamism is justified as resistance to western domination and globalization. The Taliban are described merely as favoring a "rigorous" Islamic moral order.

One textbook quotes with approval an article written in the run-up to the Iraq war, arguing for the urgency of containing American power, which imposes its will by force and is contemptuous of allies.

Also approvingly reprinted in a textbook is a student essay: Terrorism is a revolt against aggressors. As in France during the Nazi occupation, terrorism appears when a people suffer and have no other solution except explosives.

After the riots began, Interior Minister Nicolas Sarkozy denounced the rioters as "racaille," which translates as "rabble" or "scum," depending on who is doing the translation. As the French begin to ponder how their nation came to be filled with a Fifth Column of Jew-hating, French-hating criminal scum, I hope that France re-examines its educational system which, by justifying terrorism against Americans and Israelis, appears to have taught principles that were readily usable to justify terrorism against the French themselves.

UPDATE: A commenter asks how to tell the difference between the justifiable use of arms against tyranny and what Islamonazi terrorists are currently doing. As the commenter notes, I've written several articles on religious attitudes about resistance to tyranny; all of them are available on www.davekopel.org. Most of the religious philosophers whom I cite, including 12th-century Catholics and 17th-century liberal Protestants, addressed the question of "What is tyranny?" a question which is a necessary, but not sufficient, part of inquiring about whether revolution is justified in a particular circumstance. All of these philosophers were Christians, and they were especially interested in freedom for their particular Christian denominations. The philosophers' answers about tyranny are not identical, but they are entirely consistent in two applications: 1. The current French government, notwithstanding its imperfections, is not a tyranny. Among the reasons that it is not a tyranny is that it does not suppress the free exercise of religion. 2. The Taliban-style regimes which contemporary terrorists hope to impose are tyrannies, because they suppress the practice of all religions except for a hateful form of Islam. In modern application, if a government allows religious freedom for everyone, the evidence is strong (although not absolutely dispositive) that the government is not a tyranny, in part because governments which are tolerant of religious freedom are usually tolerant of many other freedoms. Conversely, people who seek a government which will kill all people of a particular race or religion (e.g., Jews) and which will suppress all religions except one particular sect almost certainly is a tyranny. Among the legitimate uses of firearms are self-defense by free governments and free citizens against tyranny and against terrorists who are attempting to impose tyranny.

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Bleg for Information about Two Very Bad People:

For a forthcoming academic encyclopedia on notorious people, I am writing the entires on George Hennard (perpetrator of the Luby's Cafeteria massacre in 1991) and on James Oliver Huberty (perpetrator of the 1984 massacre at a McDonald's in 1984). If you have suggestions for useful sources--particularly print-publications--on either of these evil men, please supply details in the comments.

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Taxpayer's Bill of Rights in Colorado:

My latest media analysis column details the hysterical and misleading media coverage of the recent election campaign to loosen Colorado's state constitutional limits on government spending.

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Drive a Hybrid, Get Pulled over by Virginia Police:

The swell new blog Spacebeagle supplies the details. More evidence that government is way too big, and has too many people not engaged in legitimate government services.

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The Catholic Second Amendment:

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The "Little Renaissance" that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

The above is a summary of my new law review article "The Catholic Second Amendment," which will be published in the Hamline Law Review in 2006. Please feel free to offer useful comments and suggestions, as long as they related to the period covered the article. Please don't include arguments about the New Testament, patristic Christianity, or modern Catholicism--all of which are interesting, and all of which I'm writing about in other articles.

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Other Federal Appellate Judges on Machine Guns:

In United States v. Rybar, Judge Alito's dissent persuasively argued that the Supreme Court's precedent in Lopez meant that Congress could not ban the simple possession of machine guns--at least not without an assertion of a basis of federal jurisdiction and Congressional findings about the effects of machine guns on interstate commerce. While Judge Alito's dissenting opinion did not carry the day, the dissent was hardly an outlier among federal judges.

For example, district court Chief Judge Barbour in Mississippi used similar reasoning to hold the ban unconstitutional. United States v. Bownds, 860 F. Supp. 336 (S.D. Miss. 1994). See also United States v. Gambill, 912 F. Supp. 287, 290 (S.D. Ohio 1996) ("mere possession of a machine gun may not implicate interstate commerce").

On appeal, the Fifth Circuit reversed the Mississippi district court and upheld the ban by a 2-1 vote. In dissent, Judge Edith Jones suggested that Congress lacks the power to prohibit possession of a machine gun under the commerce power. Rejecting the majority's theory that a ban on possession of an item is a permissible exercise of the power to ban interstate commerce in an item, Judge Jones argued:

The statute is not limited to possession in or even affecting interstate commerce, or to possession of a firearm that has traveled in interstate commerce. Rather, it criminalizes the mere private possession of a machine gun. The majority infer from the fact that Section 922(o) prohibits "transfer" as well as "possession" that channels or things in commerce were intended to be regulated. This inference seems unwarranted for two reasons. First, transfer as well as possession of a thing can be of a wholly intrastate character. Second, when the government criminalizes conduct in the disjunctive, it may prosecute separately each type of conduct disjunctively named. Thus, as in this case, possession alone is criminalized independent of any transfer of a machine gun.

Judge Jones concluded her analysis by pointing out that:

Lopez reminds us forcefully that Congress's enumerated power over commerce must have some limits in order to maintain our federal system of government and preserve the states' traditional exercise of the police power. Section 922(o) is a purely criminal law, without any nexus to commercial activity, and its enforcement would intrude the federal police power into every village and remote enclave of this vast and diverse nation.

United States v. Kirk, 70 F.3d 791, 799, 802 (5th Cir. 1996) (Jones, J., dissenting).

The Fifth Circuit reheard the case en banc, and split eight-to-eight, thereby leaving the original decision intact. United States v. Kirk, 105 F.3d 997 (5th Cir. 1997).

In the en banc case, eight judges voted to affirm per curiam. Three of them joined a lengthy opinion by Judge Higginbotham which (like Justice Breyer's dissent in Lopez) stitched together excerpts from various popular magazine articles which allegedly showed that machine guns were sometimes used in crime; repeatedly asserted how dangerous machine guns are; said that machine guns have no social utility, and claimed that while Congress would not ban mere possession of ordinary guns, machine guns were on a different plane, and could be banned.

The dissenters (Garwood, Jolly, Smith, Duhe, Barksdale, Emilio M. Graza, and DeMoss), joined an opinion by Judge Jones. They argued replied that the ban on possession could not be justified as carrying out a ban on commercial transfer--since a person could acquire a machine gun through a non-commercial transfer, such as a bequest; or a malfunctioning semi-automatic might fire two bullets with a single trigger press, and thereby be classified as a machine gun by federal law.

In the Sixth Circuit, a machine gun/Lopez case led to a 2-1 split upholding the statute. United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)(dissent by Judge Suhrheinrich).

In the Third Circuit's Rybar case, the majority was forced to made the preposterous argument that although 18 U.S.C. 922(o)(the ban on possession of machine guns manufactured after May 19, 1986) had no legislative history or findings about interstate commerce, the legislative history of other portions of the Gun Control Act--which had been enacted in different years and which said nothing about machine guns--supplied sufficient findings about interstate commerce. Rybar at 279-80.

Judge Alito's dissent pointed out that not all cases of possession in violation of 922(o) involve any form of commerce, let alone interstate commerce. For example, the owner could have converted a semiautomatic to automatic. Nor is every illegal transfer an interstate transfer. Further, the possession of a machine gun on one's property has no more genuine connection with interstate commerce or commerce of any sort than does possession of a gun within a school zone (the federal law struck down in Lopez).

Neither Congress nor the government attorneys defending 922(o) have produced any evidence that the occasional intrastate possession of machine guns by interstate criminals (e.g. controlled substance merchants, racketeers) has a substantial effect on interstate commerce.

Regarding the post-hoc efforts of various courts to conclude that Congress-- while remaining utterly silent on the subject--had somehow determined that machine guns burden interstate commerce, Stephen Halbrook writes in the Firearms Law Deskbook (the only national practice manual on firearms law):

The suggestion that Congress secretly made such a finding is just as speculative as it would be to suggest that Congress secretly thought such firearms to be a burden on raising armies, collecting taxes, coining money, establishing post offices, punishing piracies on the high seas, or other subjects of Congress's enumerated powers in Article I, Section 8 of the Constitution.

That many federal courts have upheld the machine gun ban--despite its manifest unconstitutionality under Lopez--shows the breadth of the problem of federal courts ignoring the law in order to achieve particular policy results. Judge Alito's opinion in Rybar shows him to be conscientious and intellectually honest in following precedent.

Besides acting illegitimately in disobeying Lopez in order to reach a preferred policy result, the fedeal judges who have taken positions contrary to the opinions of judges such as Alito and Jones have been unreasonable. Today in the United States, machine gun possession is lawful in 41 states. (It is banned for non-government employees in Delaware, Hawaii, Iowa, Illinois, Kansas, New York, Rhode Island, and Washington. California's permit law is applied so as to make possession possible only by the film industry.) There are over 200,000 lawfully possessed machine guns in the United States, every one of them registered and taxed according to the strict requirements of the National Firearms Act of 1934. Neither Congress nor any scholar has ever produced evidence showing that the 1986 ban on manufacturing new machine guns for the civilian market has contributed in the slightest to public safety.

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Great Debate on Tort Protection for Gun Manufacturers:

The Legal Talk Network hosted a debate on the Protection of Lawful Commerce in Firearms Act. Participants were Master Conspirator Eugene Volokh, Josh Horowitz from the Educational Fund to Stop Gun Violence, and me. Josh and I spoke the next day, and agreed that the debate was informative and cordial--far superior to the angry exchange of talking points that sometimes characterizes debates on gun control. You can listen to the debate in WMF, or download it in MP3.

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Second Amendment Tea Leaves:

In Re Two Possible Supreme Court Nominees. In the case of Love v. Pepersack, Judge Luttig concurred in an opinion rejecting a section 1983 claim for an erroneous denial of a handgun license by the state of Maryland. Judge Luttig's concurrence stated, in its entirity: "I concur only in the judgment reached by the majority, and I do so only because Gardner v. Baltimore Mayor and City Council, 969 F.2d 63 (4th Cir. 1992), is the law of the circuit." The Gardner case involved a narrow interpretation of substantive due process.

In United States v. Rybar, Judge Alito wrote a blistering dissent from the majority opinion which held that, notwithstanding United States v. Lopez, Congress had the power to use the Interstate Commerce power to prohibit the mere possession of machine guns manufactured after May 1986, even though Congress had made no findings about the effect of such machine guns on interstate commerce. Judge Alito's dissent did not address the majority's assertion that Rybar had no Second Amendment rights because Rybar was not a member of the militia.

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

UPDATE: I haven't found anything yet on Karen Williams.

Michigan Supreme Court Justice Maura Corrigan has three notable gun cases, but none sheds direct light on her RKBA views. In a 2004 case, she wrote the majority opinion in a 5-2 decision creating a "good faith" exception to Michigan's exclusionary rule. The case involved a home search that discovered a firearm and marijuana. A robust Fourth Amendment is an important secondary protection for Second Amendment rights, and the Fourth Amendment has been devastated by the exclusionary rule, as I detail in an Akron Law Review article.

Also in 2004, Justice Corrigan joined a majority opinion reversing the conviction of a longtime Michigan gun rights activist who had sold a firearm to undercover police officers in a sting operation. Justice Corrigan agreed that because the defendant had complied with Michigan's laws regarding handgun sales, his actions were not illegal. The decision bodes well for her attitude towards some of the law enforcement abuses and aggressive interpretation of gun control statutes which have too often characterized the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In 2001, Justice Corrigan was part of 4-3 majority which applied a "strict textualist" interpretation to the Michigan Constitution, thereby negating an attempting to prevent Michigan's Shall Issue concealed handgun licensing law from going into effect. The Michigan Constitution allows petitioners to stop a new statute from going into effect by gathering sufficient petitions to put the statute to a popular vote in a general election. However, the Constitution forbids delaying the implementation of a new statute which has an appropriation therein, and the Michigan licensing law included a one million dollar appropriation for county licensing boards. As Justice Corrigan pointed out, anti-gun advocates still could have petitioned for an initiative to overturn the licensing statute; they were simply barred from preventing the statute from going into effect in the period before the next election.

MORE UPDATE: Diane Sykes (7th Cir., formerly Wisc. Sup. Ct.) voted with a unanimous majority in the Cole case (holding that new Wisconsin constitutional RKBA did not confer a right to carry a concealed gun in an automobile), and with the majority in Hamdan (holding that there was a constituitonal right to carry concealed on one's business premises). (Both cases are discussed in my Albany Law Review article on state constitutional decisions on concealed carry.) According to one report of the oral argument, her questions showed her to be a gun owner, and to be supportive of the RKBA.

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Brazil Gun Prohibition Referendum:

Brazilian voters today will decide whether to prohibit the commercial sale or manufacture of all firearms and ammunition, except for police and military use. Polling stations, which use computer voting, close at 5 p.m. First results are expected around 8 p.m., and final results around midnight. Brazil's President Lula has strongly supported gun prohibition, and pushed it through the legislature, only to have the Brazilian Supreme Court declare the prohibition unconstitutional. Lula has also proposed a United Nations tax on ammunition to pay for "development" (that is, a UN-sponsored transfer of money to corrupt governments such as his).

Various polls showed the referendum with as high as 76-83% approval months ago. But a superb campaign, lead by “Vote Não” has educated the public about the dangers of gun prohibition--including the fact that citizens would be defenseless against criminals (who will keep their guns no matter what the law says) and against totalitarian government.

The latest polls show the referendum failing by a 10-18% margin, and Lula is now distancing himself from the referendum.

The referendum was strongly supported by the international gun prohibition movement, which mobilized scores of celebrities and other notables to campaign for the referendum. The prohibitionists made no secret of their plan to use Brazil as a springboard for prohibition in other countries--starting with the rest of Latin America, and South Africa.

Even with a "Não" vote, Brazil's gun laws will remain extremely repressive, as they are deliberately designed to make gun licensing unaffordable to poor people.

Still, a victory for self-defense and civil liberties advocates in Brazil would be a stunning repudiation of the international gun prohibition movement. Although the Brazilian vote has received only a little attention in the United States, its long-term significance for the survival of the Second Amendment is enormous. It would be difficult, and perhaps impossible, for a robust Second Amendment to survive in the United States if the prohibition movement achieved its goals in the rest of the world.

A law student or other scholar who can read Portuguese could write a very interesting and important article on the subject of Brazilian gun laws and the recent campaign for prohibition.

UPDATE: With 71% of polling places reporting, the "Não" votes are ahead 65%-35%. If no vote stays over 60%--a landslide--the damage to the international gun prohibition movement will be especially severe.

The overwhelming public rejection of disarming innocent citizens may be playing an important role in the development of rights consciousness in Brazil. Consider this comment from an American working for a Brazilian gun prohibition group:

“Their whole campaign (against the ban) was imported from the United States. They just translated a lot of material from the NRA. Now, a lot of Brazilians are insisting on their right to bear arms, they don’t even have a pseudo right to bear arms. It’s not in their Constitution,” said Jessica Galeria, an American who researches gun violence with the Viva Rio think tank.

It's true that Brazil--unlike the United States, Guatemala, or Mexico--does not have an explicit constitutional right to arms. But various provisions of the Brazilian Constitution imply the right to possess the means to defend oneself. For example, Article 5, section 11 states:

the home is the inviolable asylum of the individual, and no one may enter it without the dweller's consent, save in the case of "flagrante delicto" or disaster, or to give help, or, during the day, by court order;

Note that the above provision is limited not limited to "state action." The right to exclude burglars from the home is just as strong as the right to exclude rogue police.

More generally, the Universal Declaration of Human Rights recognizes a right to forcibly resist tyranny (a purpose of arms-bearing which was repeatedly stated in the "Vote Não" campaign).

And the natural right of self-defense is one of the foundations of the Western and Catholic traditions of natural law--recognized by Thomas Aquinas and by the current Catechism of the Catholic Church (see, e.g., sections 2263-65). Surely the long Catholic tradition of the legitimacy of forcible self-defense is of some relevance in the rights-consciousness of an overwhelmingly Catholic nation. (I realize, of course, that Brazilian Bishops urged a "yes" vote on the referendum; the majority of the laity obviously disagreed with them, as the laity has every right to do, according to Catholic doctrine, in prudential matters of public affairs). Perhaps the referendum will encourage a future Brazilian government to recognize the obviously strong respect that Brazilians have for the right of self-defense, and to amend the Constitution to provide more explicit protections against the invasions of natural rights that might be attempted should a Lula-type ruler gain power some day in the future.

MORE UPDATE: With 75% of the vote counted, Reuters has called the election for "Não," and the prohibitionists have conceded.

ANOTHER UPDATE: With 92% of the vote in, the results are 64% to 36%. For those of you who read Portuguese, two articles I've written, which have been translated into Portuguese, are available here.

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[David Kopel, October 22, 2005 at 11:13am] 0 Trackbacks / Possibly More Trackbacks

Cheater Prospers:

For many years, Denver Bronco Bill Romanowski was the dirtiest player in the National Football League. Now, the media are helping the despicable "Romo" sell his self-sreving autobiography. In my latest media column for the Rocky Mountain News, I argue that the media shouldn't help cheaters prosper. Instead, the media should publicize sports autobiographies by players who didn't make a career of cheating. For example, it's too bad the media almost completely ignored The First Black Quarterback, by Marlin Briscoe.

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David Kopel, October 20, 2005 at 1:54pm] 0 Trackbacks / Possibly More Trackbacks

Congress Bans Abusive Anti-Gun Lawsuits:

At approximately noon, eastern time, the House of Representatives voted to pass S. 397, 283-144. The bill, known as the "Protection of Lawful Commerce in Arms Act," has been endorsed by the White House, and now goes to the President for his signature.

The bill is the culmination a decade of tort reform work, aimed at addressing the problem of abusive lawsuits against gun manufacturers. The bill is an excellent exercise of the congressional power over interstate commerce, for precisely the purpose for which Congress was originally granted that power: the bill is necessary and proper to stop local governments from interfering with interstate commerce, including by attempting to use a verdict in a single state court to impose national firearms controls which have been rejected by Congress and by all state governments.

S. 397 is also a proper exercise of Congressional power under section 5 of the 14th Amendment, to prevent local governments, including local courts, from infringing the Second Amendment rights (and the parallel state constitutional rights in 44 states) which are guaranteed to all law-abiding Americans.

In addition, the bill is also a necessary and proper exercise of the Congressional war power, because the civilian firearms industry is now, and always has been, essential to the production of firearms for the military. Without a robust civilian firearms industry, manufacturers who had to produce only for a military or police market would have to charge much higher prices, and would innovate far less. Almost every gun ever used by the U.S. military was originally developed for the civilian market. Accordingly, the Department of Defense stated that is "strongly supports" S. 397 because the bill "would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform."

Thirty-four states had already enacted their own laws to prohibit such suits, but Congressional action was necessary to ensure that a single court in one of the hold-out states did not attempt to destroy the U.S. firearms industry, or to impose the will of a single judge as a national system of firearms restrictions.

The Brady Center, the instigator of the abusive suits, has already expressed its intention to fight the new federal law in court. Significantly, no court anywhere in the United States has ever ruled in favor of similar challenges to the state statutes restricting abusive lawsuits against Second Amendment rights.

The Senate added two unrelated items to S. 397, both of which have caused concern among some Second Amendment activists:

First, the bill increases the already severe mandatory minimum sentences for use of armor-piercing ammunition in a violent or drug trafficking crime. Mandatory minimums are generally a bad idea, but since actual armor-piercing ammunition, as defined by federal law, is very rare, the practical effect of the new sentences will be very small.

Second, the bill requires all licensed firearms dealers to include a locking mechanism with each handgun they sale. Almost every American manufacturer already includes a lock (either an internal lock or, more commonly, a cable lock or trigger lock), with every new gun.

Accordingly, the main effect of S. 397's lock provision will be to force sellers of used handguns to raise their price by several dollars to provide customers an item that the customer may not need. (For example, the customer may already own a gun safe, or may plan to keep the handgun always ready for self-defense, so that it should not be locked up.)

The bill also provides civil immunity for persons who use locking devices. There have been a few state court cases in which guns were effectively treated as ultra-hazardous products, and gun owners whose guns were stolen and used in a crime were found civilly liable, even though their guns had been stored in a safe.

Both of the extra provisions have slippery slope risks: Senator Kennedy and a significant number of Senators favor expanding the definition of "armor-piercing" ammunition so as to include the vast majority of conventional rifle ammunition. And several states have enacted dangerous laws which require handguns to be locked up, and thus inaccessible for emergency self-defense.

However, the future dangers of slippery slopes are far outweighed by the immediate threat posed by abusive lawsuits. On the whole, S. 397 is an immense victory for constitutional rights.

For background on the abusive lawsuit issue, you may wish to read some of the ten articles I've written on the subject, including the 1995 Seton Hall Legislative Journal article which argued that courts should protect the Second Amendment from abusive lawsuits, just as they protected the First Amendment from abusive lawsuits in New York Times v. Sullivan. But even better than judicially-created protection is legislatively-created protection. Today's bi-partisan vote is a tremendous victory for the constitutional rights of citizens, and is the result of Congress exercising its powers for precisely the pro-freedom reasons for which those powers were granted to Congress by the American people.

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[David Kopel, October 18, 2005 at 12:25pm] 3 Trackbacks / Possibly More Trackbacks

Chinese Dissidents and Yahoo:

A few weeks ago, I criticized Yahoo, Google, Microsoft, and Cisco for cooperating with evil, because each of those companies assists the Chinese suppression of dissent, in order to be able to make money from the lucrative and growing Chinese market. Some apologists for the companies replied that, even though the companies were assisting repression and making it more efficient and pervasive, the companies were somehow encouraging the long-run development of freedom in China.

Today, the Financial Times reports on a letter which a leading Chinese dissident, Liu Xiaobo, has sent to Yahoo. Having spent time in prison for speaking the truth about China's ruling Communist Party, Liu "says Yahoo has enough market clout not to need to toady to authorities." He explains the corporate-communist deal: corporations make profits at the expense of human rights; the communists are given Internet control, and new means to squelch dissent. Thus:

“The collusion of these two kinds of ugliness means that there is no way for western investment to promote freedom of speech in China, and that in fact it greatly increases the ability of the Communist party to blockade and control the internet,” he writes.

“You are helping the Communist party maintain an evil system of control over freedom of information and speech,” he writes.

Simply put, there appears to be no way to be an ethical Internet company in China today, just as there was no way to be an ethical supplier of spy equipment to the USSR or Nazi Germany. Corporations are generally supposed to maximize their profits, but there is a point at which a particular form of profit maximization becomes unethical. It's ethical for companies to make barbed wire, but it's not ethical for the company to sell barbed wire to a regime which the company knows will use the barbed wire to build concentration camps.

The American Internet companies which do business in China are assisting the creation of the world's most sophisticated architecture of repression. No company should make profits at such a terrible cost to human rights. After American companies left, the Chinese tyrants would undoubtedly find other, inferior, foreign companies to provide Internet services and assist with the suppression of liberty. It would be better, though, if China's architecture of repression were built by inferior, less efficient companies, rather than by the best minds of the world's best computer companies.

If expelled from China, an ethical company could further assist human rights by setting up major offices in free Taiwan.

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[David Kopel, October 14, 2005 at 6:43pm] 0 Trackbacks / Possibly More Trackbacks

Bellicose Women, Part XXX:

Jordanian brigadier general Aisha Bint Al Hussein carries on a long and honorable tradition of expertise at arms among Bedouin women. As reported by StrategyPage:

"In the 19th century, when firearms became common among the Bedouin, women became even more lethal as warriors, because firing a rifle did not require the muscle of the older weapons (swords, spears and bows.) In Saudi Arabia...the older women still remember the freedom women had as recently as the 1950s. During that time, Islamic conservatives began imposing more restrictions on women as the Bedouin nomads settled down. But in Jordan, the women still have much freedom, in the ancient Bedouin tradition. This causes some friction, as the urban and rural Arabs adopted a much more restrictive attitude towards women. However, the old ways are remembered, and are increasingly being seen as the future for women in the Middle East."

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If I drank coffee, I'd drink Contra Coffee:

"At the height of the Cold War, the Nicaraguan Contras successfully fought to secure their freedom and block the spread of Communism. Today these freedom fighters need our help. Many former Contras are small-scale coffee farmers who produce high quality beans but struggle to break even because of low coffee prices. Your purchase of Contra Café allows these farmers to earn the livelihood they deserve." Some of the proceeds from Contra Café are donated to provide scholarships for the children of American soldiers who have been wounded or killed. The coalition which overthrew the Somoza dictatorship in Nicaragua was fighting for a just cause; but the Nicaraguan revolution was perverted by Communist tyrants who betrayed the principles of the revolution. In a five-part history of Nicaragua, I explain how the Contras were fighting to establish democracy. The freedom-fighters succeeded, thus achieving the goals of the original revolution.

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[David Kopel, October 14, 2005 at 4:17pm] 0 Trackbacks / Possibly More Trackbacks

Bellicose Women, Part XXIX, India:

Since September 11, 2001, Glenn Reynolds has run at least 28 items about "bellicose women" taking up arms to defend their families and communities from terrorists. Thanks to the excellent pro-rights newsletter "News from the Sight," I found that Muslim women in Kashmir (many of the men are working in Gulf States) have founded a Village Defense Committee to protect their towns from Islamic terrorists. One mother explains, "It is an amazing feeling to hold a gun in one's hand for a noble cause...I am proud to be fighting a jihad against these marauders who cheated us of our dignity and honor."

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[David Kopel, October 4, 2005 at 6:54pm] 1 Trackbacks / Possibly More Trackbacks

Dark Skies Bleg:

I am finishing a monograph on "dark skies" legislation, which restricts some night-time uses of electricity, in order to facilitate star-gazing. I would like to ask some questions to someone who is familiar with, and generally supportive of, such laws, and who also has some ideas for distinguishing reasonable dark skies regulations from unreasonable ones. If you would like, I can credit you in footnote 1 of the monograph. If you'd like to provide some guidance, please contact me via the e-mail link at the bottom of the left-hand frame on my website, www.davekopel.org. Alternatively, if you have thoughts about the merits of particular dark skies regulations, feel free to leave them in the comments.

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David Kopel, October 3, 2005 at 6:20pm] 0 Trackbacks / Possibly More Trackbacks

Miers on the Right to Keep and Bear Arms:

The New Republic's fine &c blog points to a 1992 article she wrote for the Texas Lawyer. In the article, she points to three infamous multiple homicides in Texas: the 1966 Texas Tower Shooting, in which a man climbed the clock tower at the University of Texas, and shot 14 people. (He was finally stopped when two policemen and a civilian rushed the building.) The second was the 1991 Killeen massacre, where a man entered a Luby's Cafeteria, and methodically slaughtered unarmed 23 people. (The incident played a major role in Texas rescinding its ban on carrying concealed handguns, and enacting a Shall Issue permit law.) The third incident in Miers' article had taken place recently; a man murdered two judges and two lawyers in a Fort Worth courthouse.

"How does a free society prevent" such crimes, she asked. She then explained:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right.

It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.

She then explained the true solution to crime:

We will be successful in solving our massive crime problems only when we attack the root causes....

We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.

I agree, and have argued in the Barry Law Review that much-improved pre-school programs for at-risk boys would be far more effective, in the long run, at reducing violent crime than would gun control or even more draconian "conservative" federal criminal laws.

As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense. (I'll fill in the details on him in a subsequent post.) And even Brandeis had not specifically mentioned "the right to bear arms" as one of the "precious liberties" that "We are not willing to sacrifice."

Many web writers have raised legitimate questions about Miers. In terms of the right to arms, however, Americans who love their precious liberties need not hope about the unknown, but need only expect her to be consistent with what she has already said.

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[David Kopel, September 28, 2005 at 12:05pm] 0 Trackbacks / Possibly More Trackbacks

Bush's Terrible Idea:

President Bush and Senator John Warner (R-Vir.) are pushing to create additional loopholes in the Posse Comitatus Act, the law that prohibits use of the military in domestic law enforcement. The drug enforcement loopholes created in the 1980s have already led to the deaths of innocent Americans. A "disaster" loophole could be even more dangerous. The fact that local, state, and federal governments bungled some of the initial response to Hurricane Katrina is not a good reason to destroy the principle of separation of the military from civil law enforcement--a principle at least as important to civil liberties as the separation of church and state.

Gene Healy of the Cato Institute is the leading spokesman for the pro-liberty side on the Posee Comitatus issue. A chapter I wrote in a Cato book a few years ago provides some historical background, and details the terrible results of the drug war loophole in the Posse Comitatus Act. You can also watch a RealVideo/Audio of a 2002 Cato Institute panel on the PCA, in which Rep. Bob Barr, Stephen Halbrook, Paul Schott Stevens, and I discuss proposals to weaken or eliminate the PCA.

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[David Kopel, September 25, 2005 at 10:28pm] 0 Trackbacks / Possibly More Trackbacks

New Orleans admits that gun confiscations have no legal basis.

On Friday, the Parishes of Orleans and St. Tammany entered into a Consent Decree in the federal district court for the Eastern District of Louisiana. The decree was the result of a lawsuit brought under section 1983 and under the Declaratory Judgment Act by the NRA and the Second Amendment Foundation. After the judge informed the defendants that he would very likely order a preliminary judgment against them, the defendants agreed to a consent decree. In the decree, the defendants assert that there was never an official government policy of confiscating guns, and admit that they never confiscated guns in accordance with Louisiana's emergency powers statute. The parties agreed to accept the the court's injunction (an injunction which is empowered only by section 1983, since an injunction is not a declaratory judgment) which:

1. Forbids them from confiscating guns.

2. Orders them to return all guns which have been confiscated.

Of course it was on Volokh.com where the legal argument was first made that "New Orleans Gun Confiscations are Blatantly Illegal." Now, the perpetrator governments have agreed to this legal conclusion, although they maintain the implausible assertion that gun confiscations were not the result of official policy. No doubt the factual issue will be explored in the lawsuits which are almost certainly to follow against the uniformed looters who stole guns from law-abiding citizens. Kudos to plaintiffs' attorney Stephen Halbrook, whose memorandum of law is available here.

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[David Kopel, September 25, 2005 at 10:14pm] 0 Trackbacks / Possibly More Trackbacks

U.S. Web firms aid in repression

My latest media column for the Rocky Mountain News details how firms such as Yahoo, Google, Microsoft, and Cisco have chosen to help the Chinese tyrants create the world's most sophisticated architecture of repression. I also argue that the greedy and immoral policies of these corporations directly endanger Americans. Because moral considerations obviously have not swayed these companies, I conclude that "Perhaps only consumer and shareholder pressure can persuade the American companies to change their evil ways."

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[David Kopel, September 16, 2005 at 12:03am] 2 Trackbacks / Possibly More Trackbacks

Roberts on the Interstate Commerce Power:

The David Hardy analysis of Judge Robert's answers on the Second Amendment, which Eugene noted, do bode well for Roberts' attitude towards individual rights. However, his answers on the interstate commerce power, which for right to arms advocates is a very important secondary issue (comparable in importance to the Fourth Amendment, in terms of its practical effect on Second Amendment rights) are very disappointing. On Wednesday he characterized Lopez as merely requiring that Congress attach some jurisdictional hook, in order to prohibit the entirely local possession of an object which decades ago might have been sold in Interstate Commerce. This might be called "the herpes theory" of Interstate Commerce; once something crosses state lines, it remains forever after an object of Interstate Commerce. I agree with the federal district judge who wrote:

To say . . . that because something once traveled interstate it remains in interstate commerce after coming to rest in a given state, is sheer sophistry. This Court, at one time, owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported to the state of Tennessee. It remained in Tennessee thereafter. Now if this car were hijacked today, some sixty years later, is it still in interstate commerce?

United States v. Cortner, 834 F. Supp. 242, 243 (M.D. Tenn. 1993), rev'd sub nom. United States v. Osteen, 30 F.3d 135 (6th Cir. 1994).

Today, Judge Roberts assured Senator Schumer that Congress has the power under the Interstate Commerce clause to ban the intra-state cloning of a toad. Glenn Reynolds and I argue to the contrary, and suggest that such a view destroys Lopez and Morrison. Compared to Justice Rehnquist, Justice Roberts appear to have similar views on the Second Amendment (good), on the Fourth Amendment (bad), and to be a step backwards on Interstate Commerce. Given that the Rehnquist Court's timid steps towards restoring the Interstate Commerce to its textual limits (rather than allowing it to be a power to regulate everything) were only decided by 5-4 votes, the replacement of Rehnquist with Roberts may end any efforts to change Congress's anti-constitutional presumption that it possess limitless powers over every activity in the United States.

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David Kopel, September 15, 2005 at 2:26am] 0 Trackbacks / Possibly More Trackbacks

Dave Kopel bleg for pro-freedom translators:

Folks who have visited my website recently may have noticed that the site now offers content (either directly, or via links) in Japanese, French, Italian, Spanish, German, Portuguese, Dutch, Swedish, Danish, Czech, Hungarian, and Polish. To further assist the many millions of freedom activists all over the world who do not speak English, I am soliciting volunteer translators in any and all languages.

At the easier level, translators can simply use their reading skills to help me compile links to add to my website--such as list of the best websites in a particular language which defend the right to arms and other civil liberties. At the more challenging level, translators can work with me to produce full-text translations of my English-language articles (presumably the shorter ones)--picking articles which are of particular interest to the translator and to the relevant language community.

Pay is nil, but article translators will be credited. If you would like to help, please contact me via the e-mail link at the bottom of the left column on my home page.

BTW, if you're interested in Saints and the Virgin Mary, I also write about them, and would be likewise be grateful for translators.

[David Kopel, September 13, 2005 at 3:21pm] 0 Trackbacks / Possibly More Trackbacks

New Orleans Guns Should Be Returned Today:

The New Orleans Police Department home invasion and gun confiscation program began last Thursday. According to Louisiana law, emergency orders, such as those "regulating and controlling" firearms, automatically expire after five days. So today, the sixth day after the confiscations began, the legal authority for the confiscations has expired. Legally speaking, victims of the confiscation ought to be able to retrieve their firearms today.

But of course the above paragraph, describing the law in Louisiana, has nothing to do with what is actually occurring. As detailed in previous postings on this weblog, the lawless Police Superintendent Eddie Compass never created, in any form, a public order to authorize the gun confiscation. Nor are there any reports that the "order" (if it ever existed) has been renewed for another five-day period, as the law allows.

Let us hypothetically assume that the confiscations were legal in the first place (under theory that confiscations are a form of "controlling" guns, which is allowed, but do not constitute "prohibiting" guns, which is not allowed). And let us further assume that the Superintendent's remark to a television reporter constitutes creation of a lawful order (even though none of the statutory procedures for creating a lawful order). Even then, the absence of a renewal order today means that the gun confiscations must cease, and that victims of the confiscation have every legal right to reclaim their property.

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David Kopel, September 11, 2005 at 3:10am] 2 Trackbacks / Possibly More Trackbacks

Follow-up to the follow-up to the follow-up:

1. Source for home invasions by police to carry out gun confiscation: ABC World News tonight, Sept. 8, 2005 (Link courtesy of MusingsOftheGeekWithA.45, Sept. 9.) BTW, my Reason article, published on Saturday, has a dead link to another site with the same video; this link still works, as of early Sept. 11.

2. The statute confers the power of "regulating and controlling" the "possession, storage, display, sale, transport and use of firearms." Orin asks how the power to of "regulating and controlling" the "possession" of firearms can exist if it does not include the power to confiscate. Here's one example of a lawful order "regulating and controlling" without prohibiting: "For five days, starting today, no one may possess a firearm in the following public places:...within 2,000 feet of a helicopter landing pad. Persons who violate this order may be arrested." I agree with Orin that the power of "controlling" is broader than the already-broad power of "regulating." I just disagree that either power goes so far as to include the distinct power of completely "prohibiting."

Related Posts (on one page):

Follow-up to the follow-up to the follow-up:
A Follow-Up to David's Follow-Up:
Follow-up for Orin:
Regulating, Prohibiting, and Controlling:
The New Orleans Gun Confiscation -- A Response to David Kopel:
New Orleans Gun Confiscation is Blatantly Illegal:
Constitutions and Emergencies:
Taking Away Their Guns in New Orleans:

[David Kopel, September 11, 2005 at 1:12am] 0 Trackbacks / Possibly More Trackbacks

Follow-up for Orin:

If the New Orleans police chief followed the advice of lawyers as conscientious and creative as Orin Kerr, New Orleans would be a better place. And our discussion of the home invasions and gun confiscation could be more legally precise, because the police chief would actually have promulgated an order, and we could discuss the legal implications of the particular order.

However, we evidently have no order, and hence we have no legal justification for the home invasions and gun thefts. Even if you read the power of "controlling" as expansively as does Orin, the power of controlling is created, pursuant to the statute, only after the chief of police does "promulgate orders." We can debate the scope of lawful "orders", but when there are no lawful "orders", the emergency powers of section 329.6 have never been invoked.

Now let us consider the effects of some orders, under the counter-factual hypothetical that lawful orders had been issued. Orin's theory is that the power of "controlling" includes the power of seizing all firearms (even though the seizures seem very much like "prohibiting"). So Orin's theory requires some way to distinguish "controlling" (which in his usage includes the power to completely deprive everyone of the possession of firearms, megaphones, and flammable material such as gasoline or matches) from "prohibiting."

His theory is that "prohibiting" means the power to define a criminal offense (predicated on violation of an emergency order) whereas "controlling" does not. So let's look at his theory in practical application. Let's imagine that the statute did confer the power of "prohibiting" guns, and that the chief of police did issue a prohibitory order:

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police is prohibited to to have a gun. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are under arrest for defying an emergency order issued pursuant to title 14, section 329.6.

Pursuant to Orin's theory, the above scenario cannot take place, because the police chief does not have the authority to issue an order "prohibiting" guns. Such a scenario could take place for items such as alcohol, which the statute does authorize prohibiting.

Now let's consider Orin's theory for how a "controlling" order works.

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police has to surrender their guns to the police when the police tell them to. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are not prohibited from having a gun. However, I am controlling your gun by taking it away from you. Give me your gun.

Citizen: No.

Police officer: I am placing you under arrest for defying an emergency order issued pursuant to title 14, section 329.6.

There are some small distinctions between the first scenario and the second scenario, so Orin's theory is not impossible, as a matter of pure logic. Indeed, his theory may be the best defense that chief Compass and everyone who cooperates in his home invasion and and gun confiscation program will have, if they are sued.

However, I suggest that the distinctions between scenario 1 and scenario 2 are distinctions without a difference. The practical difference between the two scenarios (and the difference between Orin's non-prohibitory "controlling" and actual prohibition) is so trivial that it is unreasonable to conclude that the legislature chose such different words to achieve such nearly identical results. Indeed, I suggest that the the only reasonable way to read a statute which authorizes "regulating and controlling" objects X, Y, Z, and authorizes "prohibiting and controlling" objects A, B, and C, is that the chief of police is not granted the power to invade homes and confiscate every single X, Y, and Z.

But of course all the above discussion is premised on the hypothesis that chief Compass is obeying the law. If he were acting pursuant to section 329.6, then his emergency order can last only five days. The gun confiscations having begun last Thursday, the police should begin returning guns to their lawful owners next Tuesday.

Am emergency order can be renewed for five-days periods. Are we to presume that the home invasions and gun seizures on every fifth day constitute the "promulgation" of a new "order" which is "controlling" (but not "prohibiting") the possession of firearms?

Appendix One: One final anecdote, for those readers who think there is at least a tiny possibility that the NO PD is applying 329.6 with the care and precision which Orin brings to his analysis of the statute. In the spring of 2004, I attended a Louisiana State House of Representatives committee hearing on several gun bills. Among the people who testified was an officer representing the NO PD. Among the proposed bills was one which would prohibit gun carrying within a certain distance of a parade. A representative asked the NO PD spokesman (who was a uniformed police officer) how the proposed ban would affect people who had concealed handgun permits. The NO PD spokesman replied that there was no problem, since the NO PD did not issue handgun carry permits.

The statement visibly shocked several committee members. One of them explained to the NO PD officer that Louisiana has a law by which all law-abiding adults are entitled to concealed handgun carry permit. In fact, the law had been enacted eight years before, in 1996, and the law took away handgun carry licensing from the local police departments, and gave it to the Department of Public Safety and Corrections.

Perhaps Police Superintendent Compass actually is conscientious about respect for constitutional rights, including the right to bear arms, in Louisiana, and perhaps Superintendent Compass just had the bad luck of picking a legislative lobbyist on gun policy who knew less about Louisiana gun law than would someone who read a newspaper a couple times a week. Or perhaps Superintendent Compass has not even trained his officers to understand the most elemental rules of lawful gun carrying in the state of Louisiana.

And perhaps the government-sponsored home invasions and taking of property which are taking place in New Orleans right now have nothing to do with law (and hence nothing to do with the legal issues that Orin and I have been debating) but are simply the exercise of raw power which has suddenly found itself freed from the checks and balances of a functioning judiciary and other restraints.

Appendix Two: For anyone wondering how the NO PD/National Guard/US Marshals actions stack up against the (probably not legally binding in the U.S.) principles of the Universal Declaration of Human Rights, see articles 3 (security of the person); 12 (arbitrary interference with privacy, family, home); and 17(2) ("No one shall be arbitrarily deprived of his property.")

Related Posts (on one page):

[David Kopel, September 9, 2005 at 9:57pm] 15 Trackbacks / Possibly More Trackbacks

New Orleans Gun Confiscation is Blatantly Illegal:

On Monday, I'll have an article on the New Orleans gun confiscation on Reason.com. But there's one part of the story that's too important to wait: the confiscation is plainly illegal. I realize that there are plausible arguments that the house-to-house break-ins and gun-point confiscations violate the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as numerous provisions of the Louisiana Constitution, including the right to arms. Indeed, the confiscations are inconsistent with the Universal Declaration of Human Rights, and with natural law. But my point is much more specific. The particular Louisiana statute which allows emergency controls on firearms also clearly disallows the complete prohibition being imposed by the New Orleans chief of police.

The relevant statute is La. Stat., title 14, § 329.6. It provides:

§329.6. Proclamation of state of emergency; conditions therefor; effect thereof

A. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any municipality or parish, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding that the public safety is imperiled thereby, the chief executive officer of any political subdivision or the district judge, district attorney, or the sheriff of any parish of this state, or the public safety director of a municipality, may request the governor to proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation by the governor, and during the continuance of such state of emergency, the chief law enforcement officer of the political subdivision affected by the proclamation may, in order to protect life and property and to bring the emergency situation under control, promulgate orders affecting any part or all of the territorial limits of the municipality or parish:

(1) Establishing a curfew and prohibiting and/or controlling pedestrian and vehicular traffic, except essential emergency vehicles and personnel;

(2) Designating specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons shall be prohibited or regulated;

(3) Regulating and closing of places of amusement and assembly;

(4) Prohibiting the sale and distribution of alcoholic beverages;

(5) Prohibiting and controlling the presence of persons on public streets and places;

(6) Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition;

(7) Regulating and controlling the possession, storage, display, sale, transport and use of explosives and flammable materials and liquids, including but not limited to the closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products;

(8) Regulating and controlling the possession, storage, display, sale, transport and use of sound apparatus, including but not limited to public address systems, bull horns and megaphones.

(9) Prohibiting the sale or offer for sale of goods or services within the designated emergency area for value exceeding the prices ordinarily charged for comparable goods and services in the same market area at, or immediately before, the time of the state of emergency. However, the value received may include reasonable expenses and a charge for any attendant business risk in addition to the cost of the goods and services which necessarily are incurred in procuring the goods and services during the state of emergency, pursuant to the provisions of R.S. 29:701 through 716.

B. Such orders shall be effective from the time and in the manner prescribed in such orders and shall be published as soon as practicable in a newspaper of general circulation in the area affected by such order and transmitted to the radio and television media for publication and broadcast. Such orders shall cease to be in effect five days after their promulgation or upon declaration by the governor that the state of emergency no longer exists, whichever occurs sooner; however, the chief law enforcement officer, with the consent of the governor, may extend the effect of such orders for successive periods of not more than five days each by republication of such orders in the manner hereinabove provided.

C. All orders promulgated pursuant to this section shall be executed in triplicate and shall be filed with the clerk of court of the parish affected and with the secretary of state of this state.

D. During any period during which a state of emergency exists the proclaiming officer may appoint additional peace officers or firemen for temporary service, who need not be in the classified lists of such departments. Such additional persons shall be employed only for the time during which the emergency exists.

E. During the period of the existence of the state of emergency the chief law enforcement officer of the political subdivision may call upon the sheriff, mayor, or other chief executive officer of any other parish or municipality to furnish such law enforcement or fire protection personnel, or both, together with appropriate equipment and apparatus, as may be necessary to preserve the public peace and protect persons and property in the requesting area. Such aid shall be furnished to the chief law enforcement officer requesting it insofar as possible without withdrawing from the political subdivision furnishing such aid the minimum police and fire protection appearing necessary under the circumstances. In such cases when a state of emergency has been declared by the governor pursuant to R.S. 29:724 et seq., all first responders who are members of a state or local office of homeland security and emergency preparedness, including but not limited to medical personnel, emergency medical technicians, persons called to active duty service in the uniformed services of the United States, Louisiana National Guard, Louisiana Guard, Civil Air Patrol, law enforcement and fire protection personnel acting outside the territory of their regular employment shall be considered as performing services within the territory of their regular employment for purposes of compensation, pension, and other rights or benefits to which they may be entitled as incidents of their regular employment. Law enforcement officers acting pursuant to this Section outside the territory of their regular employment have the same authority to enforce the law as when acting within the territory of their own employment.

F. Notwithstanding the provisions of this Section, except in an imminent life threatening situation nothing herein shall restrict any uniformed employee of a licensed private security company, acting within the scope of employment, from entering and remaining in an area where an emergency has been declared. The provisions of this Subsection shall apply if the licensed private security company submits a list of employees and their assignment to be allowed into the area, to the Louisiana State Board of Private Security Examiners, which shall forward the list to the chief law enforcement office of the parish and, if different, the agency in charge of the scene.

First, there are the procedural issues. According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.

The more serious issue is the substantive one. The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshals--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendent of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

The Compass order appears to be plainly illegal. Under section 1983 of the federal Civil Rights law, any government employee who assists in the illegal confiscation would appear to be personally liable to a civil lawsuit. Moreover, higher-ranking officials--such as the National Guard officers who have ordered their troops to participate in the confiscation--would seem to be proper subjects for impeachment or other removal from office (and attendant forfeiture of pensions), depending on the procedures of their particular state.

All police officers, National Guard troops, and U.S. Marshals take an oath to uphold the Constitution and the laws. It appears that carrying out an illegal order to confiscate lawfully-owned firearms from homes would be inconsistent with the oath, contrary to sworn duty, and perhaps a criminal act.

UPDATE: Orin's response to my post (above) contains several misunderstandings, in my view:

1. The most serious problem is that he reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibiting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

2. He's right that the statute doesn't specify whether proper publication and filing are necessary for the emergency orders to be lawful. (And as my original post indicated, it's not absolutely certain that proper publication and filing have not occurred, although it would be odd for the Louisiana Secretary of State not to post the filing of such an important order.) At least in some circumstances, strict adherence to the provisions of subsections (B) and (C) would be impossible. For example, the Secretary of State's office might be closed; indeed, the courts in Orleans Parish are currently closed. However, if the police chief failed to file the proper notice with the Secretary of State, even when the Secretary of State's office is open, the failure to file indicates, at the least, a disregard on the part of the chief for proper legal procedure.

3. Note subsection (B)'s rule that "Such orders shall be effective from the time and in the manner prescribed in such orders... Such orders shall cease to be in effect five days after their promulgation..." Has the police chief ever promulgated a proper emergency order about firearms? Sending police officers out to confiscate guns is not "promulgation." For the order to be valid, there must, at least, be some form of proper order to the public, not merely to the police. The "promulgation" must, at the least, include a date on which the order goes into effect, because a legal start date is necessary to calculate the automatic expiration date five days thereafter. It seems unlikely that a press conference merely announcing--after the confiscations and break-ins have already begun--the confiscations are taking place, constitutes the promulgation of an "order." The only Louisiana case law definitions of "promulgate" come from election law cases; they rely on the dictionary definition of "promulgate" as "To make known or announce officially and formally to the public." The cases further specify that "promulgate" should be understood in its specific statutory context. E.g., LeCompte v. Board of Sup'rs of Elections of Terrebonne Parish, 331 So.2d 173 (La. App. 1976). And it appears that the chief of police has not complied with any of the statute's specific standards for promulgation (newspaper, parish court, Secretary of State).

4. Violation of a person's state constitutional right to keep and bear arms is a violation of her 14th Amendment rights, and gives rise to a cause of action under section 1983. Kellogg v. City of Gary, 562 N.E.2d 685, 696 (Ind. 1990):

For all of the foregoing reasons, we now hold there is a state created right to bear arms which includes the right to carry a handgun with a license, provided that all of the requirements of the Indiana Firearms Act are met. This right is protected by the Due Process Clause of the Fourteenth Amendment and is both a property and liberty interest for purposes of § 1983.

If the confiscation of firearms is illegal under Louisiana statute, then the confiscation is very likely a violation of the right to arms under the Louisiana constitution. Moreover, pursuant to United States v. Emerson, the Second Amendment is recognized as an individual right in the Fifth Circuit, which includes Louisiana. The Second Amendment, even if unincorporated, would be the basis of a section 1983 claim against any federal employees involved in the confiscation. Also, the warrantless entry into homes and illegal confiscation of property might give rise to section 1983 claims premised on the Fourth and Fifth Amendments.

5. In response to some of the issues raised by comments on related posts...the President of the United States probably has the power, as Commander in Chief, to order the confiscation of firearms from areas in actual rebellion, following a proclamation of martial law. Martial law has not been declared. The "standard of scrutiny" question for the deprivation of state or federal constitutional rights is irrelevant here; the question would be relevant if there were a challenge to the constitutionality of the Louisiana emergency statute. When the police chief exercises power which he was never granted by law, then his act is ultra vires, and necessarily illegal.

Related Posts (on one page):

Follow-up to the follow-up to the follow-up:
A Follow-Up to David's Follow-Up:
Follow-up for Orin:
Regulating, Prohibiting, and Controlling:
The New Orleans Gun Confiscation -- A Response to David Kopel:
New Orleans Gun Confiscation is Blatantly Illegal:
Constitutions and Emergencies:
Taking Away Their Guns in New Orleans:

[David Kopel, September 1, 2005 at 1:51pm] 14 Trackbacks / Possibly More Trackbacks

Armed Response to Looters:

I will be on NRAnews today, at 5:20 p.m. Eastern Time, to discuss citizen response to the New Orleans looters, along with some thoughts about the surge in gun ownership that followed 9/11. You can listen/watch on the web, or on Sirius satellite channel 141. My view on the looting is that it is reasonable, under the legal excuse of Necessity, for a person to take food from a store, if no other food is available in the disaster zone. Such a person would be obligated to remember the value of the food, and to make payment for what he took as soon as practically possible. However, the looting of concern in New Orleans isn't Jean Valjean taking bread for his children; the looting involves attacks on hospitals to steal their narcotics, and attacks on stores or homes which have nothing to do with acquiring necessities for short-term survival. Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen's arrest and detention isn't possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.

Related Posts (on one page):

Private Use of Deadly Force to Defend Property and Restore Order:
Comment on "Armed Response to Looters":
Armed Response to Looters:

August 27, 2005

Is the Mainstream Media Biased against Cindy Sheehan?

I argue that the answer to this question is "yes," in my latest media column for the Rocky Mountain News. Even though the media fawn over Mrs. Sheehan, they are so tied to the narrative of the grieving mother that they fail to report Mrs. Sheehan's views which strongly challenge the status quo. While her far-left supporters and her right-wing opponents both give her the respect of taking her views seriously enough to report and discuss them, most of the MSM shields its audience from learning about Mrs. Sheehan's radical critique of the United States.

(Comments enabled solely to discuss media coverage of Cindy Sheehan. Trolls who want to reargue the Iraq War will be deleted.)

41 Comments

[David Kopel, August 22, 2005 at 5:32pm] 2 Trackbacks / Possibly More Trackbacks

Why do they hate France?

The August 6-19 issue of the weekly France-Amerique edition of Le Figaro (one of the two top daily newspapers in France) contains a fascinating article on hostility to France. Historian Jan Eichler, in "La tentation de la francophobie" (The francophobe temptation), examines the sources of the strong anti-French sentiment in central and eastern Europe, with special reference to the Czech Republic. He notes that when asked for an explanation, Czechs cite the "trahison de Munich" (treason/betrayal of Munich).

Eichler explains, however, that the Munich citation has two distinct meanings. For some Czechs, it is simply a literal memory of a terrible act by the French government, which led to tremendous suffering for Czechoslovakia.

Other Czechs, he elaborates, use "Munich" as a shorthand for what they see to be France's failure to support the robustly pro-freedom American policies in Europe. For the latter group, the list of grievances includes some events which were well-known at one time, which have been forgotten by almost all Americans, but which are vividly remembered by many Czechs--such as France's withdrawl from the NATO military command during the DeGaulle presidency.

These pro-American Czechs resent French criticism of the "american way of life." They repeat the arguments of "la fameuse 'Reagan victory school'", which they believe won the Cold War (la guerre froid) and which the Czechs believe can also win the terror war. As the subhead of Eichler's commentary states, "Les nouveaux pays de l'UE, seduits par les theses neoconservatrices, optent pour l'atlantisme." (The new nations of the EU, seduced by the neo-conservative theses, opt for Atlanticism.) (Accent marks are omitted from the French headline.)

UPDATE: A few commenters are wondering about how many important daily newspapers there are in France. The French are blessed with many good daily newspapers, although, sadly, they do not publish on Sunday. However, Le Monde and Le Figaro are the two most important--especially for non-Communist readers. The monthly Le Monde Diplomatique probably has the biggest influence outside of France, with Fig's various international editions coming in second. The daily editions of Le Monde and Le Fig certainly have a huge lead over any other French newspaper for newsstand distribution in England, Germany, and Switzerland, based on my own observations.

P.S. Personally, I adore France's culture and its many historic contributions to Western civilization. Although I was appalled by France's pro-Saddam policies, it is important to remember that France has often played a very constructive role in the War on Terror--including sharing intelligence with the U.S., and helping to force Syria out of Lebanon. But I also understand why Czechs and other peoples who suffered under the Warsaw Pact for so many decades would be especially vigilant about wanting to side with nation that took the lead in their own liberation.

28 Comments

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The Scottish and English Religious Roots of the American Right to Arms:

Many Americans believe they have a God-given right to possess arms as a last resort against tyranny. This draft article (forthcoming later this year in the interdisciplinary journal Bridges) examines one of the most important sources of that belief: the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to be protected by an armed people ready to resist encroachments on their natural, sacred liberties. The principle that right to arms is the ultimate guarantor of the right to free exercise of religion is one reason why the First and Second Amendments are placed next to each other in the American Bill of Rights.

Please send constructive comments and criticisms to the e-mail contact on my website.

UPDATE: A commenter wonders if I am being consistent by criticizing people who support the violent Iraqi terrorist-insurgents, while also asserting (in the commenter's words) that "religious extremists were somehow justified in using violent force against British soldiers."

First, I think it's dubious to claim that the Congregationalist and Presbyterian American ministers who incited the American Revolution were "extremist." But in any case, they're not the subject my article, and it is preposterous to imply that John Locke or Algernon Sidney--among the most tolerant, decent people of their time, or any other time--were "religious extremists." They were extremely tolerant, to their everlasting credit.

The broader point is that I don't criticize Michael Moore and his ilk because they support violence, or because many of the violent people whom they extol are also religious people. I criticize Moore et al. because they support violence whose purpose is imposing totalitarian dictatorship. Violence to impose tyranny is evil; violence to liberate people from tyranny is legitimate, and is sometimes a moral duty. Or so Locke, Sidney, Buchanan, and Rutherford reasoned, and I agree.

22 Comments

[David Kopel, August 13, 2005 at 4:55pm] 1 Trackbacks / Possibly More Trackbacks

Supporters of the Iraqi "Resistance":

The Volokh post asking for names of respectable people who support the Iraqi resistance (that is, support the totalitarian terrorists trying to destroy Iraqi democracy) has, so far, yielded an apt quote from Michael Moore, and not much else. As a result, Orin suspects that there may not be many such people--although, as one of Orin's commenters points out, some people who hold the position may not articulate it in polite company.

Well, I just ran "support the Iraqi resistance" through Yahoo, and looked at some of the top hits. Among the supporters of the so-called "resistance" are James Petras (an emeritus professor at the State University of NY), the famous Indian novelist (and winner of the Sydney Peace Prize) Arundhati Roy (who waffles about whether she personally is urging people to engage in violence, but is unequivocal about wanting the "resisters" to take over the country), comedienne Janeane Garafolo analogizing the Iraqi resistance to Americans resisting an illegitimate Russian-Chinese invasion of the United States, and Virginia Rodino (Green Party candidate for U.S. House in Maryland in 2004), who declares herself "in solidarity with the courageous Iraqi resistance.” This is obviously not a comprehensive list, just what was easy to find in a few minutes.

An interesting thread on Democratic Underground shows that among rank and file activists (not the more famous types that Eugene originally asked about), there is a substantial diversity of opinion about whether anti-war activists should support the "resistance." Related Posts (on one page):

[David Kopel, July 28, 2005 at 12:32pm] 0 Trackbacks / Possibly More Trackbacks

Gun Laws of America:

The 2005 edition of Alan Korwin's excellent book Gun Laws of America has just been published. The book contains the full text of every gun-related federal statute, along with plain English explanations. The book is a very valuable reference for any lawyer or scholar who works on gun laws, and also a useful resource for citizen activists. Korwin's press, the Bloomfield Press, also has an extensive series of books on state-level gun laws. But my favorite Bloomfield book is Supreme Court Gun Cases, which I co-authored, and which compiles everything the Supreme Court has ever written about the Second Amendment, self-defense, or gun policy. It turns out that the Supreme Court has written quite a bit more than is commonly recognized, and that the great weight of the Supreme Court's jurisprudence favors individual rights and self-defense.

[David Kopel, July 25, 2005 at 6:37pm] 0 Trackbacks / Possibly More Trackbacks

Wayne Allard will not seek re-election:

So predicts my dad, Jerry Kopel, in his most recent column. My dad, who served in the state legislature with Allard, notes that Allard was always a man of his word, and Allard has repeatedly pledged adherence to a two-term Senate limit. Another recent article by my dad looks at Governor Owens' veto of a bill which would have stopped the General Assembly from raiding dedicated trust funds, in order to pay for general spending.

2 Comments

[David Kopel, July 21, 2005 at 3:49pm] 1 Trackbacks / Possibly More Trackbacks

Congressional Bill on Sentencing Would be 2d Amendment Disaster:

And it would be pretty bad for lots of other civil liberties as well, including the principle of punishment proportionate to the crime. And for the principle that the government should not force family members into becoming informants against each other. The bill is H.R. 1528, which has already passed a subcommittee, and is ready for consideration by the House Judiciary Committee. Mike Krause and I dissect the bill is a new Issue Paper from the Independence Institute.

9 Comments

[David Kopel, July 21, 2005 at 12:00pm] 0 Trackbacks / Possibly More Trackbacks

Severus Snape and Harry Potter book 7:

That's the subject of my new essay analyzing the Harry Potter and the Half-blood Prince, the sixth book in the series. Don't read the essay unless you have finished the sixth book. If you have finished it, my essay will show that many of the mysteries left to be resolved in book 7 have actually been hidden in plain sight in book 6.

28 Comments

[David Kopel, July 19, 2005 at 6:48pm] 0 Trackbacks / Possibly More Trackbacks

Samuel Colt: Great Inventor, Exemplary Businessman:

Today is the anniversary of the 1814 birthday of Samuel Colt, the inventor of the Colt revolver. We tend to remember Colt as the man who first figured out how to manufacture and mass produce a reliable repeating firearm. In an article a few years ago, I argued that all Americans, not just gun enthusiasts should honor Colt for his contributions to American business. The Colt Manufacturing Company was a pioneer in precision manufacturing. One of the most important reasons for the Company's success in mass production of complex products was how Colt treated his employees. Colt employees were well-paid, well-fed, and well-rested. Colt also insisted that outside contractors treat their own employees well. As a businessman who showed that the best way to get rich was to treat one's employees better than competing companies do, Samuel Colt remains an admirable model for business today.

2 Comments

[David Kopel, July 18, 2005 at 5:56pm] 0 Trackbacks / Possibly More Trackbacks

What if the Grateful Dead had been observant Jews who lived in Israel?

Then they would have sounded a lot like Reva L'Sheva. Their website includes a good sample of free music. Start out by listening to the 27 minute live jam from their New York City show. If you like the Dead, or other jam bands, you'll be an instant convert.

4 Comments

[David Kopel, July 18, 2005 at 5:47pm] 0 Trackbacks / Possibly More Trackbacks

Should the Media Withhold Accurate Information?

In my latest media column for the Rocky Mountain News, I suggest the answer is "yes." A case in point is the recent controversy over the Boulder Daily Camera publishing a picture of a man arrested for a notorious local crime, even though publication of the photo could taint the line-up identification made by witnesses, thereby ruining the criminal case.

More broadly, I suggest that the media should not become a de facto accomplice of people who murder to achieve publicity--such as school shooters, or assassins of celebrities. Put the photos of the victims, not the killers, on the front page. And minimize use of the killer's name.

Finally, the media and the public should begin a dialogue for how the media can avoid serving as a force multiplier for terrorists by making terrorists seem more powerful than really are.

7 Comments

[David Kopel, July 8, 2005 at 1:58am] 5 Trackbacks / Possibly More Trackbacks

Italian Parliament votes for self-defense rights:

The Associated Press press reports that the Italian Senate has just approved a bill to better protect the self-defense rights of crime victims. "[T]he bill would allow people to shoot at thieves attempting to burgle homes, shops or offices, even if the target of the burglary was not judged under immediate threat, Italian daily Corriere della Sera said."

The principle of "proportionality" has long been misused against Italian crime victims. In a 2002 article, Carlos Stagnaro and I wrote: "The courts insist that the defense must be 'proportional' to the aggression — so that if a man is using his bare hands to commit rape, the woman cannot fight back with a gun. Likewise, if your home is invaded by a gang armed with knives, the courts will not allow you to use a firearm against them.

The campaign to reform Italian gun laws, which are hold-overs from the nation's Fascist era (as Stagnaro and I detailed in another article), has been in progress since Silvio Berlusconi's election in 2001. Given Italy's status as a prime target of al Qaeda, further reform of Italian laws, to enable decent people to protect themselves against sudden attacks, would be eminently sensible.

UPDATE: Several authors on the interesting and diverse Comments discussion have wondered how expansion of the Italian right to self-defense would help in the war on terrorists. As some comments note, citizens carrying firearms (or edged weapons) would not be of use in defending against a London-style attack, involving remote-control hidden bombs. Certainly true. In other situations of self-defense against Islamonazism, citizen possession of firearms can be very helpful, as illustrated by the experience of Israel and Thailand.

26 Comments

[David Kopel, July 5, 2005 at 1:07pm] 0 Trackbacks / Possibly More Trackbacks

My New Favorite Website:

Is JerryKopel.com, my father's website. After serving for 22 years as a Democratic Colorado State Representative, my father returned to his original profession, and in 1993 began writing a weekly newspaper column on Colorado and national issues. The website collects those columns. Although the website is still a work in progress, it's up-to-date for all his 2005 and 2004 columns. His latest pieces criticize the flag-burning amendment, mock the new Colorado state quarter, and explain how the state legislature's self-indulgence on bills filed after the proper deadline left the Democratic legislature helpless against the veto pen of Republican Governor Bill Owens.

[David Kopel, July 4, 2005 at 12:03pm] 0 Trackbacks / Possibly More Trackbacks

Gaylord Nelson, PDA.

Senator Gaylord Nelson passed away yesterday. During his distinguished service as United States Senator from Wisconsin, Senator Nelson was the leading voice for environmentalism in the Senate--even before environmentalism became a popular cause. Senator Nelson introduced the bill which created the first Earth Day, on April 22, 1970. Defeated in the 1980 Reagan landslide, Gaylord Nelson continued his public service as President of the Wildnerness Society. Here's a 1990 interview I had with Senator Nelson, for the magazine Relix.

For readers who would like to read my comments for the Volokh Conspiracy in a PDA format, here it is. I hope that one day there will be a complete PDA version for the Volokh Conspiracy, as there is for InstaPundit. In the meantime, I'm doing my part for mobility.

[David Kopel, July 1, 2005 at 11:34am] 3 Trackbacks / Possibly More Trackbacks

Thoughts and Toasts for Undiminished Devotion on Independence Day:

During this weekend, take some time to remind yourself, and perhaps to teach some younger people, about the blessings of liberty in the United States of America. The Battle of Gettysburg took place this weekend in 1863, so it is certainly appropriate to remember the many heroes of that battle, including Winfield Scott Hancock, whose bravery may have saved the Union during Pickett's charge.

I've long supported reviving the custom of offering 13 patriotic toasts at Independence Day parties. This article collects some of the historic toasts; I've enabled comments so that people can supply some modern toasts. And of course practicing the responsible use of firearms is an excellent way to honor the anniversary of our revolutionary independence, all the better if you can instruct or introduce someone else to responsible gun use. You may also choose to read, or re-read, the words of our Founders. Teaching your children about the first two paragraphs of the Declaration of Independence will help them understand the meaning of the day, and the meaning of their nation.

A few days before Thomas Jefferson died on July 4, 1826--the fiftieth anniversary of the Declaration of Independence--he could see that the revolution he had helped to spark was burning throughout the world. He wrote:

"All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are the grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them…"

8 Comments

[David Kopel, June 30, 2005 at 10:49am] 4 Trackbacks / Possibly More Trackbacks

Zimbabwe Tyranny Confiscates Guns:

The ZWNews website reports that the Mugabe dictatorship has ordered a new round of gun confiscation:

Police at the weekend said they were revoking licences for all automatic rifles and some types of pistols and said civilians owning such weapons had until today to surrender them....

But sources at police headquarters in Harare said the move was just precautionary to ensure such weapons could not be used by civilians should tension gripping Zimbabwe in the wake of the government’s clean-up exercise erupt into public violence. "The ban is targeted at all automatic weapons which the government fears could pose a security threat in the country should the civil strife in Zimbabwe turn violent," said a source, who did not want to be named for fear of victimisation. This is not the first time that the government has cancelled firearm licences. At the peak of its chaotic and often violent farm seizure programme in 2000, the government issued a decree compelling civilians to surrender their guns. The move was targeted at white commercial farmers who at that time held a number of assault guns for self-protection. Zimbabwe’s security forces have been on high alert since the government launched a "clean-up" campaign last month that has left close to a million people without shelter after their shanty homes were demolished.

As I detailed in a 2001 article, Zimbabwe's dictatorship has a long practice of using gun controls, many of which were inherited from British colonial rule, to ensure that victims of its barbaric abuses of human rights are unable to resist. The International Association of Genocide Scholars, in a June 7 statement, warned that the Mugabe government was again on the path to mass murder.

Perhaps the most effective foreign aid which should be sent to the people of Zimbabwe would be millions of rifles, so that the people would no longer be defenseless against the depradations of one of the most evil governments in all of African history.

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[David Kopel, June 27, 2005 at 3:18pm] 0 Trackbacks / Possibly More Trackbacks

Court Gets Right Result on Cable Case:

The decision in National Cable Telecommunications Assoc. v. Brand X Internet Services, was a victory for technological progress, and for property rights. For nearly a decade, some Internet predators (including, for a while, AOL) claimed that the government should give them the right to sell ISP services delivered on a broadband network which was built by someone else. In other words, if A builds a restaurant, then B claims that he has the right to sell food in A's restaurant, as long as B pays A a "reasonable" fee for access to the restaurant. In a broadband context, the government-abetted piracy was called "Open Access", and claimed as giving consumers more choice. But the more accurate term was Forced Access, since B would use government force in order to intrude B's business onto A's property. In the long run, Forced Access would have drastically reduced consumer choice, since Internet companies would be reluctant to innovate and take risks to build infrastructure, if the government might force an innovative company to share the infrastructure with another company that did not innovate technologically, but did exercise political clout.

The Court's decision today did not address the merits of Forced Access, but instead deferred to the judgment of the Federal Communications Commission in interpreting an ambiguous statute. (Whether broadband is an "information service" or a "telecommunications service.") The F.C.C. did act on a policy basis. Back in 1999, I wrote a lengthy Policy Study for the Heartland Institute warning that a policy of Forced Access could harm the rapid development of broadband connectivity. Fortunately, the covetous companies that demanded Forced Access enjoyed only mild success in their preferred forum (city councils) and their schemes were defeated when the Federal Communications Commission intervened.

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[David Kopel, June 23, 2005 at 11:40am] 0 Trackbacks / Possibly More Trackbacks

Indiana Court of Appeals Vindicates Self-Defense:

In the case of Indiana v. Black, the defendant was charged with murder, and planned to raise a self-defense argument. During voir dire, the judge prevented defense counsel from asking prospective jurors "Do you believe in self-defense?" At trial, the defendant testified that he acted in self-defense, and counsel incorporated self-defense into the closing argument. After Black was convicted, he appealed on the grounds that voir dire had been improperly restricted. A three-judge panel of the Indiana Court of Appeals unanimously agreed, finding the voir dire limit to be plain error.

The appellate court's decision seems clearly correct. Some people have moral objections to self-defense, and wish to impose their morality on other people. (That's one reason why many anti-gun groups say that it is alright for people to possess guns for sport, but not for self-defense.) A defendant who claims to have acted in self-defense obviously could not receive a fair trial from a jury which included members who would not follow Indiana law regarding self-defense, but would instead refuse to consider self-defense as a legal justification or excuse. Accordingly, the voir dire process should have been available to disqualify such jurors.

[David Kopel, June 19, 2005 at 1:22pm] 0 Trackbacks / Possibly More Trackbacks

What Guantanamo is Really Like:

Senator Richard Durbin has been justly mocked for his statement about what an FBI reported seeing at Guantanamo:

"If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime -- Pol Pot or others -- that had no concern for human beings."

The more plausible analogy to Guantanamo is British interrogation of Irish Republican Army suspects in the early 1970s. Then, the British extracted confessions through "the five techniques": wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep. The European Court of Human Rights, in the 1978 case Republic of Ireland v. United Kingdom, ruled that the techniques did not constitute "torture," but were "inhuman and degrading," in violation of Article 3 of the European Convention on Human Rights.

The European convention obviously does not apply to the American interrogation of Arab or Afghan terrorist suspects at a military base in Cuba, but there are still plausible objections that can be raised against coercive interrogations, even when the persons being interrogated are terrorists. Serious discussion about Guanatamo would be enhanced by looking to appropriate historical analogies (such as the U.K.'s self-defense in the 1970s against the I.R.A.), rather than to absurd analogies, such as those drawn by Senator Durbin, which trivialize the Holocaust, the Soviet genocide, and the Pol Pot genocide.

David Kopel, June 19, 2005 at 12:34pm] 0 Trackbacks / Possibly More Trackbacks

Media Ignores African Genocides:

That's the thesis of my latest media column for the Rocky Mountain News. The column points out the media's failure to cover the Ethiopian genocide against the Anuak people, the severe undercoverage of the genocide-by-starvation in Zimbabwe, and minimal attention to the disaster, including genocide, in the Democratic Republic of the Congo. That the Sudanese genocides in the south Sudan (against black African Christians and animists), and in west Sudan (against black African Muslims in Darfur) have received media attention is mainly because human rights activists, particularly Christian groups in the U.S., have forced the issue into the public's consciousness.

The media are correct, I concede, in recognizing that most readers have scant interest in Africa. But I argue that in the case of genocide, the media have an ethical duty to keep the issue constantly in front of their audience. One reason the promise of "never again" has turned into the awful reality of "again and again and again" is that Third World genocide receives so little Western media attention.

[David Kopel, June 14, 2005 at 4:44pm] 2 Trackbacks / Possibly More Trackbacks

Racist and Religious Bigot to Teach "Sensitivity" to Police:

The Catholic League for Religious and Civil Rights is protesting the decision of the New Orleans police chief to use the Nation of Islam's security chief, Captain Dennis Muhammad, to conduct the police department's "sensitivity" training. The Nation of Islam, led by Louis Farrakhan, is well-known for promoting hatred of Jews, Catholics, homosexuals, whites, the U.S. government, and of black people who do not share the group's agenda.

[David Kopel, June 14, 2005 at 12:04pm] 2 Trackbacks / Possibly More Trackbacks

The New McCarthyism against Gun Owners:

"The New McCarthyism: Restricting Constitutional Rights Based on Mere Suspicion" is the title of my new Issue Backgrounder for the Independence Institute. Rep. Carolyn McCarthy (D-N.Y.) has proposed turning the federal "No-fly list" into a prohibition on firearms possession. The Backgrounder analyzes her proposal and other proposals to use suspicion-based lists as a basis for prohibiting the exercise of Second Amendment rights.

[David Kopel, June 11, 2005 at 10:11am] 17 Trackbacks / Possibly More Trackbacks

W.V. Court Vindicates Self-defense Right for Employees:

In Feliciano v. 7-Eleven, a masked woman with a gun attempted to rob the 7-Eleven where Feliciano worked. While the robber was distracted by another employee, Feliciano grabbed her gun, and held her captive until the police arrived. "Following this incident, 7-Eleven terminated Feliciano, who was an at will employee, for failure to comply with its company policy which prohibits employees from subduing or otherwise interfering with a store robbery."

The West Virginia Supreme Court cited numerous precedents showing that the right of self-defense is very well-established and substantial public policy. Accordingly:

we hold that when an at will employee has been discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at will employment doctrine and will sustain a cause of action for wrongful discharge. Consistent with our prior precedent, we hold further that an employer may rebut an employee's prima facie case of wrongful discharge resulting from the employee's use of self-defense in response to lethal imminent danger by demonstrating that it had a plausible and legitimate business reason to justify the discharge.

Related Posts (on one page):

Comment on Firings for Self-Defense:
Firings for Self-Defense:
W.V. Court Vindicates Self-defense Right for Employees:

[David Kopel, June 9, 2005 at 2:02pm] 1 Trackbacks / Possibly More Trackbacks

Is Resisting Genocide a Human Right?

That's the title of the law review article in progress that Paul Gallant, Joanne D. Eisen, and I have posted as a Working Paper. Conducting an in-depth study of the genocide in Darfur, Sudan, and also discussing other genocides, the article details the inadequacy of many of the international community's response to genocides, including "targeted sanctions" or international peacekeeping forces. Examining international legal authorities such as the Genocide Convention, the Universal Declaration of Human Rights, and the International Court of Justice, the article demonstrates that groups which are being subjected to genocide have a legal right of self-defense. International treaties, Security Council arms embargoes, or national gun control laws cannot lawfully be enforced in a manner which prevents self-defense resistance to a genocide in progress, because under international law, the prohibition against any form of complicity in genocide takes legal precedence over lesser laws. We welcome your comments, which can be sent to the e-mail address at the lower left of my home page.

[David Kopel, June 4, 2005 at 2:22pm] 0 Trackbacks / Possibly More Trackbacks

Media Miscoverage of the Guantanamo Gulag, Gay Rights, and Iranian Nukes:

Those are topics of my latest media analysis column for the Rocky Mountain News. Once you're at the News website, check out the first article in a major five-part series on Ward Churchill, presenting extensive new evidence of academic fraud by Churchill.

[David Kopel, June 3, 2005 at 12:07pm] 0 Trackbacks / Possibly More Trackbacks

Zimbabwe Democide Facilitated by Victim Disarmament:

StrategyPage, the world's best public website for military analysis, warns that "Zimbabwe is about ready to explode in a nightmare mass murder." StrategyPage calls the killings "democide"--a word invented by University of Hawaii political scientist R.J. Rummel for mass killings. ("Genocide," a word invented during World War II, more narrowly refers to mass killings aimed a particular ethnic or religious group. The Pol Pot killings in Cambodia would technically be "democide" rather than "genocide", since the Khmer Rouge killed Cambodians without regard to their ethnicity.)

As with many previous democides, the democide in Zimbabwe is being perpetrated with a government-induced famine, in which food aid is directed only to government loyalists, and the "black market" in food is suppressed.

StrategyPage explains why the Mugabe tyranny is able to perpetrate democide: "There hasn’t been any revolution so far because the potential rebels cannot get guns. No one is willing to arm the dissatisfied majority....The government seems determined to starve its enemies to death, secure in the knowledge that the victims are unarmed, and the government forces have lots of guns."

Back in 2001, Paul Gallant, Joanne Eisen, and I warned that Zimbabwe was "ripe for genocide." We also detailed how the Mugabe tyranny has used gun licensing and registration laws, inherited from British colonial times, to disarm the people of Zimbabwe, leaving them helpless against government-controlled gangs of young thugs.

In a 2002 article in the Rocky Mountain News, I noted the American media's extremely inadequate coverage of Zimbabwe, including the failure to report on an explicit statement by the ruling party (Zanu-PF) about the advantage of getting rid of half of the country's population.

The international community's response to the highly visible democide in Zimbabwe has been even more ineffectual and tepid than the response to the highly visible genocide in Darfur, Sudan. One reason is that the Mugabe dictatorship retains the support of South African President Mbeki. Likewise, the dictators who run most of subsaharan Africa strongly oppose creating a precedent of international intervention against mass-murdering African tyrants.

But if the people of Zimbabwe had not been disarmed under the pretext of "gun safety", they would be able to help themselves. A revolution would not be guaranteed to succeed, but fighting to live is much better than helplessly starving to death.

After the Holocaust, the international community said "Never again." Yet in Zimbabwe, as in so many other nations in the last 60 years, the combination of citizen disarmament and international indifference has made democide a reality again and again and again.

An excellent daily news source about Zimbabwe is the ZWNews website, which also offers a free daily e-mail update. The courageous Zimbabwe Independent is still publishing a web edition.

[David Kopel, June 2, 2005 at 12:06pm] 3 Trackbacks / Possibly More Trackbacks

Abusive Anti-gun Lawsuit Rejected by Florida Appeals Court:

Yesterday the Florida Fourth District Court of Appeals affirmed the trial court's entry of a judgment against the plaintiff in Grunow v. Valor. The case involved a lawsuit against the wholesaler of a small, old handgun which was stolen by a 13-year-old and used to murder a public school teacher. The plaintiff (the teacher's widow) had argued that the wholesaler was liable because the gun was defective, although, as I detailed in a 2002 article, the plaintiff's theory would mean that almost all handguns are "defective." After a jury found the wholesaler 5% liable for the homicide, the trial court entered a judgment n.o.v., because the jury verdict was inconsistent. The intermediate court of appeals ruled that the verdict was not inconsistent, but that judgment against the plaintiff was proper, because well-established Florida precedent made it clear that there was no theory of negligence by which the wholesaler was liable. The manufacturer, Raven Arms, was not sued, because it is out of business.

[David Kopel, May 27, 2005 at 10:19am] 4 Trackbacks / Possibly More Trackbacks

Banning Kitchen Knives:

An editorial in the May 28 issue of the prestigious British Medical Journal calls for banning the sale of kitchen knives, in order to reduce fatal stabbings. My 1999 article All the Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America details some of the U.K.'s prior knife controls, including the ban on carrying any bladed instrument of defensive purposes (such carrying makes the knife an "offensive weapon" under the law), and the criminal prison term imposed on a man who carried a small knife for his job cutting newspaper bundles.

UPDATE: This seems a good opportunity to tout Bernard Levine's excellent website on U.S. knife laws. He offers the full text of all state and federal laws, plus many articles on knife history and policy. The laws of many states are much more severe than many people realize, and include bans on the possession of some types of knives, as well as bans on carrying.

[David Kopel, May 25, 2005 at 4:12pm] 0 Trackbacks / Possibly More Trackbacks

Gun Prohibition One Country at a Time:

In 1924, after Lenin's death, the Communist Party of the Soviet Union introduced the concept of "socialism in one country." Recognizing that the hoped-for Communist revolutions elsewhere in Europe would not take place, the Soviet Communists set about building their version of "socialism," and then adding other nations to their "socialist" sphere of hegemony whenever possible. Today, many international gun prohibition advocates have recognized that, even though world-wide gun prohibition is not achievable in the near future, gun prohibition can be advanced in individual nations.

Single-country (or single-region) gun prohibition is called "micro-disarmament." Success stories of micro-disarmament are a very important part of international gun prohibition advocacy. In Microdisarmament: The Consequences for Public Safety and Human Rights, my co-authors Paul Gallant, Joanne Eisen, and I examine six case studies of microdisarmament. In three of those cases--Albania, Bougainville, and Cambodia--microdisarmament has seriously harmed human rights. Limited disarmament in rural Guatemala was followed by a crime wave, but it is not clear that the former caused the latter. In San Miguelito, Panama, there was a successful program to convince youthful gangsters to surrender their guns, in exchange for participation in a government jobs program. In Mali, northern tribes rebelled against the corrupt central government which starved and oppressed them. After the central kleptocracy was replaced with a democratic government, the new government recognized that the northern rebellion could not be violently defeated; when the new government agreed to respect the rights of the northern tribes, the northern tribes laid down their arms. In Mali, disarmament was not the cause of peace, but rather the result of a successful war for indigenous self-determination.

The Microdisarmament article will appear in a forthcoming symposium on firearms policy in the UMKC Law Review. The PDF version available on the web is nearly final, except for some cross-references in footnotes, and a few other small items.

UPDATE: Over at Prawfblawg, Kaimi Wenger objects to my introducing the above entry with the Soviet analogy. Wenger writes, "every political group on the face of the planet uses incrementalist strategies at various times." Thus, my introduction "is the equivalent of saying 'Lenin used pen and paper, and so does Handgun Control, Inc.'" Wenger argues that I had no good "justification for tying together these two entities — one of which invokes strong negative connotations."

Here's why I think the comparison is apt. It’s true that the large majority of cases of trying to change people’s conditions of living proceed incrementally. So it would be possible to say that “Fabian socialist tactics” are used by the Brady Campaign, by the NRA, and by lots and lots of interest groups, in very diverse settings.

The unusual case is trying to accomplish a radical change in a very short period of time, without going through the long evolutionary process of gradual intermediate steps. For example, the Bolsheviks tried to move Russia from a quasi-feudal economy to a socialist economy almost instantly—without going through the long intermediate phases of capitalist growth and then capitalist degeneration which Marx had argued was necessary before the emergence of socialism.

Trying to achieve a massive change in social conditions, in one quantum step, is notable for its rarity. The early U.S.S.R. attempted to achieve in a few years a transition from feudalism to capitalism which Marx had believed would take decades. Similarly, microdisarmament campaigns attempt to change--in a few months--a society which is awash in firearms into a society with no (non-goverment) firearms. Microdisarmament--by attempting a rapid quantum change--uses a strategy opposite to the strategy typically employed by gun control advocates in western democracies. For example, it took the United Kingdom nearly a century to change from a society where there were no gun controls to a society which is fairly close to de facto prohibition. Had the British disarmament strategists attempted in 1911 to make sure that Britain was "gun-free" by 1912, they would have been attempting a transformation as bold as what the microdisarmament campaigners are attempting in the Third World.

The second parallel--and the main reason I chose the quote in the introduction--was that the Russian leadership, before settling on the policy of "socialism in one country", had a vigorous internal debate about whether socialism could survive in a single country. Before 1924, the mainstream Soviet Communist view was that if the rest of Europe did not go Communist, then the U.S.S.R. would not be able to survive as a Communist nation. The "socialism in one country" advocates stood for the contrarian position that the U.S.S.R. could survive as a socialist state even if there were no other socialist countries in the world.

Similarly, some gun prohibition advocates believe that gun prohibition in one country is futile, as long as other countries have lax gun laws. This is a worldwide version of the common U.S. argument that states with strict gun laws have their laws undermined by loose gun laws in other states.

Microdisarmament takes the contrarian view--that gun prohibition can succeed in a single country, despite the absence of worldwide gun controls.

Hence, I think there are useful comparisons between the idea of socialism in one country and gun prohibition in one country; both involve quantum changes in social conditions in one nation, accomplished notwithstanding the significant risk that conditions in other countries could defeat the attempted change. That said, I should also state the obvious: the supporters of the international gun prohibition movement are a very diverse lot. Some of them, including almost all of their American supporters, sincerely believe in democracy and human rights. Others--such as the government of Iran--apparently see international gun prohibition as a method of shielding their totalitarian regimes from popular revolution.

[David Kopel, May 24, 2005 at 1:33pm] 0 Trackbacks / Possibly More Trackbacks

Alphecca's Excellent News Round-up:

Alphecca, a self-described "gay gun nut in Vermont" compiles a weekly news collection of stories on firearms rights and media bias thereon. Today's compilation is especially interesting. It includes:

An Illinois bill, which may become law over the Governor's veto, that would close the so-called "gun show loophole" and abolish state police record-keeping on firearms transactions by law-abiding gun owners.
The Stonewall Second Amendment Society, a Utah gay gun rights groups which is fighting some anti-diversity bigots who want to keep the group from marching in Salt Lake City's gay rights parade.
The full text of Secretary Rice's recent explanation of her adamant support for the Second Amendment--and NPR's analysis thereof.

And there's much, much more. If you're interested in lively blogging on Second Amendment issues, Alphecca is an outstanding site.

[David Kopel, May 22, 2005 at 8:49pm] Trackbacks / Possibly More Trackbacks

Kopel on the Media:

My latest media column for the Rocky Mountain News points out the flaws in Newsweek's ranking of the top 100 American high schools. I also look at an error-filled retrospective on Colorado's 1992 Amendment 2 anti-gay rights ballot initiative. And I bemoan the decision of newspapers to cover Israeli Independence Day with a biased story that whitewashes Arab responsibility for the suffering caused by the war that Arab governments started in 1948.

David Kopel, May 20, 2005 at 12:09pm] 3 Trackbacks / Possibly More Trackbacks

Hate Speech from Eleanor Holmes Norton:

Rick Santorum's foolish analogy about the German conquest of Paris, which Master Conspirator Volokh recently denounced, was an early favorite for the Most Ridiculous Statement by a Congressperson for the Week for May 15-22. However, Senator Santorum must now take a distant second place to D.C. Representative Eleanor Holmes Norton. Opposing a NRA-backed bill to restore Second Amendment rights to the citizens of the District of Columbia, Norton claimed that the intended purpose of the bill was to kill children. Stop the Bleating supplies the citations, and notes the difference between the claim that the bill would have the unintended consequence of causing innocent deaths (a type of legitimate argument which is made in the context of many different legislative debates on different issues) and Rep. Norton's vicious claim that the bill's sponsors are deliberately trying to cause the deaths of innocents. Eleanor Holmes Norton should apologize for her despicable slander.

UPDATE: The weblog No Quarters contacted Rep. Norton's press secretary on Friday, and received a response on Monday. The secretary told No Quarters that Rep. Norton believes is was "not the intention of the sponsors" to kill children. It appears that either: 1. The Washington Times made a mistake about a brief Q&A with Rep. Norton (as her office claims), or Rep. Norton made an incideniary remark to a reporter, and upon reflection Rep. Norton does not want to be associated with that remark. In any case, it is good to know that, even though some gun prohibition lobbyists assert that Second Amendment advocates do not value the lives of children, Representative Norton does not make such a mean-spirited assertion.

[David Kopel, May 19, 2005 at 11:24am] 0 Trackbacks / Possibly More Trackbacks

Florida's New Self-Defense Law:

Florida Governor Jeb Bush recently signed Senate Bill 436, which expands and clarifies Floridians’ self-defense rights against violent attackers. The bill was the creation of former NRA President Marion Hammer, who is also head of Unified Sportsmen of Florida, the state’s major pro-gun group. The NRA has announced that it plans to take SB 436 national, and urge other states to adopt similar measures.

Previous Florida programs created by Marion Hammer have done very well in other states. In 1988, her lobbying led Florida to enact “Shall Issue” concealed handgun licensing legislation—so that any law-abiding adult with a clean record and who passes a safety training class may obtain a permit to carry a handgun for lawful protection. Before 1988, only a handful of states had Shall Issue laws; now, only a little more than a dozen states do not have such laws.

Similarly, Hammer invented the “Eddie Eagle” gun safety program, which trains elementary school-age children not to touch a gun unless they are being supervised by a responsible adult. Eddie Eagle has been taught to millions of children, has won an award from the National Safety Council, and has been lauded by state legislature and city councils all over America.

So Florida-style self-defense rights may be coming to your state soon. Opponents of the law have made dire predictions about turning Florida into “the Wild West.” Similar predictions were made about the Shall Issue law, and those predictions did not come true. If you read the actual text of the Florida law, it becomes clear that the new law simply codifies common-sense principles of self-defense, including the principle that violent criminals, not innocent victims, should be the ones at risk during a violent crime.

Let’s start with the Preamble:

WHEREAS, the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others, and
WHEREAS, the castle doctrine is a common-law doctrine of ancient origins which declares that a person's home is his or her castle, and
WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves, and
WHEREAS, the persons residing in or visiting this state have a right to expect to remain unmolested within their homes or vehicles, and
WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida:

Few people could disagree with the statements in the Preamble, which simply affirm existing rights, including the rights of innocent people not to be attacked.

The operative part of the law begins by setting forth the standard for use of deadly force against an attack in one’s home or one’s automobile:

Section 1. Section 776.013, Florida Statutes, is created to read:
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

In other words, a person may use deadly force against someone who unlawfully and forcefully enters a person’s home or vehicle. A victim may also use deadly force against a criminal who attempts to force a person out of her vehicle or home. Thus, if someone kicks down your front door in the middle of the night, or attempts to carjack you, you can use firearm or other deadly weapon to protect yourself. You do not have to worry that a prosecutor might second-guess your decision, and claim that you should have used lesser force against the violent intruder.

The bill makes several exceptions. The right to use deadly force does not apply against someone who has a right to be in the home or car (unless the person is the subject of domestic violence restraining order r a no-contact order). The right does not apply in child custody dispute. Of course the right does not apply if the person trying to enter the home or automobile is an identified police officer acting within the scope of his duties. Similarly, persons who are using the automobile or dwelling to commit a crime are not covered:

(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

Prior Florida law about self-defense allowed defensive deadly force only when the victim believed that no lesser force would suffice. The principle remains in effect in all self-defense situations in Florida, except when the attack takes place in the home or automobile; the legislative judgment was that attacks in a home or vehicle are so outrageous, and so threatening to the social order, that victims should be guaranteed that they will be protected from having their defensive decisions second-guessed in court.

Outside of the home or vehicle, a victim may only use deadly force when it is reasonably believed to be necessary. (So the victim continues to face a risk of prosecutorial second-guessing). However, the new law specifies that victims are not legally obliged to retreat anywhere:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

So if a gang tries to mug you while you are walking down a dark street, and you draw a gun a shoot one of the gangsters, a prosecutor cannot argue that you should have tried to run away. The prosecutor still can, however, argue that use of deadly force was unnecessary, because the victim could have used lesser force in the particular situation.

The next section of the law makes explicit one of the presumptions of the law—that violent invaders of the home or automobile are presumed to be intending to commit violent crimes after they enter.

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

The first section of Florida Act concludes by defining “dwelling” to include a porch which is attached to the dwelling, and to include temporary dwellings, such as camping tent:

(5) As used in this section, the term:
(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The second and third sections of the bill amend existing statutes, to make explicit the absence of an obligation to retreat. (Italicized language is new; strike-through language has been repealed.):

Section 2. Section 776.012, Florida Statutes, is amended to read:
776.012 Use of force in defense of person.--A person is justified in using ~~the use of~~ force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the ~~such~~ other's imminent use of unlawful force. However, a ~~the~~ person is justified in the use of deadly force and does not have a duty to retreat ~~only~~ if:
(a) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or.
(b) Under those circumstances permitted pursuant to s. 776.013.

Section 3. Section 776.031, Florida Statutes, is amended to read:
776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the ~~such~~ other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

The final section of the bill prohibits tort lawsuits against persons who act in conformity with the law. A criminal who sues a crime victim will be liable for the victim’s legal expenses. Police officers are not allowed to arrest a victim who defended herself, unless the officers have probable cause to believe the victim violated the laws:

Section 4. Section 776.032, Florida Statutes, is created to read:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s.776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Principled opponents of the Florida law can object to the bill because it allows deadly force against home invaders and carjackers, because crime victims are not required to retreat, or because criminals may not sue crime victims. In the United Kingdom, such objections would carry the day. Earlier this year, the Blair government defeated a move in Parliament to ease Britain’s severe restrictions on self-defense in the home, because, in the British government’s view, criminals also have a right to be protected against violence. Likewise, the British courts have allowed burglars to sue victims who used force against them.

But in the United States, social attitudes tend to favor the victim’s rights over those of the criminal. Most Americans would disagree with the idea that a mugging victim should be sent to prison because he didn’t try to flee, or that violent predators ought to be able to sue victims who shoot them.

As the Florida bill is introduced in other states, victims-rights opponents will probably be successful in getting newspapers and television to describe the proposal in very frightening terms. But when legislators and their aides read the actual text of the bill, many legislators will—like their Florida counterparts—conclude that bill is nothing more than some common-sense protections for crime victims.

[David Kopel, May 14, 2005 at 12:03pm] 2 Trackbacks / Possibly More Trackbacks

Do Firearms Harm Economic Development?

The international gun prohibition movement has been working hard the past several years to pick up allies from other international interest groups. The prohibitionist tactic is to argue that civilian possession of firearms harms "X", where "X=the particular concern of the interest group." Thus, feminists are targeted with the claim that firearms possession harms women (even though firearms possession by women harms rapists); and human rights advocates are told that firearms possession harms human rights (even though firearms prohibition is the sine qua non for genocide). Similarly, economic development supporters are told that firearms possession by citizens harms economic development.

In the next issue of Engage, the journal of the Federalist Society, my co-authors Paul Gallant, Joanne Eisen, and I investigate the claim. We find that in Latin America, development failure long-preceded the proliferation of firearms among civilians. In Africa, the key impediments to development are malaria and AIDS, which thrive in Africa partly because of harmful policies encouraged by the United Nations bureaucracy. Finally, we conduct case studies of Kenya and Zambia, and detail how corrupt, undemocratic governments are the fundamental impediments to development. The international gun prohibition movement aggravates the problem, by allowing kleptocracies to shift the blame away from themselves, and to instead blame good citizens who only want to protect their families from government-sponsored violence.

[David Kopel, May 12, 2005 at 11:11am] 2 Trackbacks / Possibly More Trackbacks

"Large Capacity Clips" and Police Officer Safety:

The Brady Campaign, the largest of the gun prohibition lobbies, is holding a press conference today to "discuss how police officer's jobs have become more dangerous since assault weapons with large capacity clips are more readily available." There's good reason to be skeptical about whatever claims the group will make. First of all, there are not many guns which actually use "clips" to store their ammunition. The venerable M-1 Garand from World War II used clips, but most guns of the last half-century store their ammunition in "magazines."

And of course, the Brady Campaign's definition of "assault weapon" is almost infinitely elastic; the "assault weapon" bill which the group successfully pushed in New Jersey even banned some BB guns.

The group's definition of "large" capacity magazines is also extreme. The now-expired 1994 federal gun ban defined "large" as anything over 10 rounds, even through millions of ordinary self-loading guns have a standard magazine capacity of 13-17 rounds. Notably, the group (under its previous name of "Handgun Control, Inc.") testified before the New York City Council in favor of banning any magazine holding more than 6 rounds.

What about the group's mantra that "large" magazines endanger police officers? The group made a similar claim in 1995; as I detailed in an article in Law Enforcement Trainer, the data from the study turned out to be misleading. In truth, so-called "assault weapons" with "large" magazines are very rarely used in crimes of any sort, including crimes against police officers.

David Kopel, May 9, 2005 at 2:51pm] 0 Trackbacks / Possibly More Trackbacks

Current gun laws may be working very well:

That's the suggestion of Posse Incitatus, which notes the result of a state-federal-local dragnet which rounded up over 10,000 fugitives. Only two percent of these fugitives had guns. P.I. suggests that the data show that American gun control laws work so well that criminals are much less likely to own guns than is the general public.

That's a good point, regarding fugitives who were arrested in their homes, presuming that many arrests included the lawfully-allowed "protective sweep" by police officers to check the vicinity for weapons. As for the arrests that took place in public areas, a gun carrying rate of two percent might not be far different from the rates of lawful carrying by licensed citizens.

[David Kopel, March 14, 2005 at 2:15pm] 0 Trackbacks / Possibly More Trackbacks

The First Amendment Defense of Ward Churchill:

Many academics and commentators continue to make the bald assertions that:

1. The CU Regents' investigation of Ward Churchill violates his First Amendment rights, and

2. Because of point 1, nothing that is brought forward during the investigation--even material brought forward by private citizens, rather than by the investigators--can be used against Churchill.

I have two challenges for people who persist in making these assertions:

1. Please explain why the investigation is a violation of the First Amendment, notwithstanding the Supreme Court case Waters v. Churchill, which allows a government employer to fire an employee because the employee speech harms the employer's ability to carry out its mission, as I discussed in a previous post. Note that the question of whether the fully-developed facts of the Ward Churchill case would support firing Ward Churchill under the standards of the Waters case is distinct from whether the CU Regents can investigate whether such facts exist. Explain why mere investigation is prohibited by existing First Amendment doctrine as elucidated by Waters.

2. Hypothesize that the Waters case does not exist, and rather that the pretend First Amendment of Churchill's defenders is the real First Amendment. Please explain why, even assuming that the investigation of Ward Churchill is improper, no fact discovered during that investigation can be used to fire Churchill. In particular, remember that "fruit of the poisonous tree" is criminal law doctrine for the exclusion of certain evidence, but does not apply to labor law or First Amendment law.

Imagine that a particular employee at a factory makes a speech, off the job, and says "All workers in town, especially at the factory that employees me, should be unionized." The employer decides to investigate the worker. The employer's investigation discovers that the employee has been producing defective products, making violent threats against female employees, and has committed many other acts which are plainly fireable offenses.

So the company fires the employee. He brings a lawsuit, and complains that the real reason he was fired was because of his legally-protected speech.

My understanding of the law--and I invite people with greater expertise to explain why I'm wrong--is that the issue of retaliatory discharge is a jury question. For example, the fired employee might show that the employer has consistently tolerated and promoted employees who make violent threats against women; thus, the jury might conclude that firing the lone employee because of his threats was merely a pretext, and that the real reason for the firing was because of the speech. If so, the jury would rule in favor of the employee.

Hypothetically, Ward Churchill might be able to show a jury that CU tolerates academic fraud, violent threats, encouraging the violent overthrow of the U.S. government, and other violations of University rules. Thus, Churchill might win his lawsuit, by convincing the jury that his discharge was motivated by speech, rather than by his misconduct.

Alternatively, a jury might credit the testimony of CU President Betsy Hoffman that she would never allow any professor to be disciplined because of his speech.

It's all a jury question, isn't it? I don't doubt that Churchill's attorney David Lane would allege that Churchill's (hypothetical) firing was retaliation for his speech. I don't need a summary of the various facts that Lane might marshal, or of the various rebuttal facts that CU might present. What I'm asking for is how the heck Churchill's defenders can assert as a matter of law that nothing in the Churchill investigation can be used as a basis for firing him? Precisely what is the legal basis of their alleged exclusionary rule, if we hypothesize that the investigation of Churchill violates the First Amendment?

If people want to argue that "true First Amendment values" or "the spirit of the First Amendment" create some kind of immunity for Churchill, they're free to so argue. But I'd like to know if there's a serious argument, based on First Amendment doctrine as it actually exists in March 2005, which proves as a matter of law that the investigation of Ward Churchill is improper (notwithstanding Waters v. Churchill) or that, even if the investigation of Churchill is improper, nothing from that investigation can be used against Churchill.

[David Kopel, March 12, 2005 at 10:55am] 0 Trackbacks / Possibly More Trackbacks

CU's Academic Culture Ignored:

That's the title of my latest media column for the Rocky Mountain News. Although the media have investigated Ward Churchill extensively, they have failed to examine the dysfunctional culture of the University of Colorado's humanities departments--which protected and promoted Churchill despite numerous warning signs, and which safeguards true academic freedom only for the far left. I also look at the case of Phil Mitchell, a conservative CU instructor and an outstanding who is being forced out because of his political views, with nary a word of protest from the media and faculty

[David Kopel, March 11, 2005 at 1:50am] 2 Trackbacks / Possibly More Trackbacks

The Pope and the President on Freedom:

That's the title of George Weigel's excellent essay detailing the similarities between Pope John Paul II's statement on Human Rights in 1995, and President Bush's second inaugural. The Pope and the President both declared that:

1. There is a universal human nature. However different human beings are, there is, at bottom, a common humanity composed of common characteristics, longings, aspirations, and temptations.

2. There is a universal moral law inscribed in this common human nature, a moral law we can know by reflecting on those common human experiences.

3. This universal moral law teaches us the dignity of the human person, from which we can deduce certain political truths: basic human rights are inalienable; government exists to protect and advance those rights; rights imply responsibilities.

4. That moral law and those political truths set a horizon of achievement in history. The defense of freedom is a moral obligation, not simply an exercise in self-interest.

Thus, Wiegel suggests that although the Bush administration and the Vatican differed on the prudence of the Iraq War, and may well disagree again, there is basis for cooperation on many issues, "because the world's leading political power and the world's leading moral authority are both committed to the defense and advance of freedom in the world, over against those so-called 'realists' who insist that 'stability' is the goal in world politics."

[David Kopel, March 10, 2005 at 12:36pm] 0 Trackbacks / Possibly More Trackbacks

University of Colorado will make Ward Churchill a rich man:

According to KHOW-AM talk radio host Peter Boyles, a very reliable media source has informed him that Ward Churchill's attorney, David Lane, has stated that CU will offer Ward Churchill a buy-out so generous that Churchill will never have to work another day in his life. Numerous other media sources in Colorado, including the daily newspapers, have confirmed that CU is negotiating a buy-out with Churchill. If these reports are accurate, CU President Betsy Hoffman's decision earlier this week to resign was well-timed, because the Churchill buy-out, which may be announced on Monday, would have ignited a firestorm of demands for her resignation.

The Churchill buy-out may be remembered at the single most self-destructive decision ever made by CU administrators. It will be a disaster for the University's fund-raising, and will significantly weaken the University's support in the state legislature. The state legislature is currently working to create a November 2005 ballot referendum to raise Colorado taxes by billions of dollars, primarily to support to higher education. It will be very difficult to convince voters that an institution which has enough money to give Ward Churchill millions of dollars desperately needs to take more money out of the pockets of families trying to balance their own budgets every month.

The tragedy of the buy-out is that, if CU administrators had the nerve, there is an overwhelmingly strong case for firing Churchill based on academic fraud, as I detailed in a previous post.

Churchill's responses to the academic fraud evidence have been entirely unconvincing. On of his tactics is to cite various far-left professors, such as Noam Chomsky, who praise his work. That Churchill is admired, in general, by some extremist professors is hardly a refutation of the specific evidence of Churchill's fraud which has been brought forward by Professors LaVelle and Brown.

Second, Churchill attempts to obfuscate the topic by pointing to irrelevant historical data. For example, as LaVelle has detailed, Churchill lied over and over by claiming that the 19th-century federal General Allotment Act gave property rights only to Indians who could prove a certain quantum of Indian blood. Churchill does not directly attempt to defend this false statement, because it would be impossible; anyone can read the Act, and see that the Act said nothing about blood quantum, but rather left the decision about who would receive Reservation land to the Indian tribes in charge of the various Reservations. So instead, Churchill points to various 20th-century federal Indian laws which did involve a blood quantum.

It seems extremely doubtful that any jury or judge would buy Churchill's implausible defense. If you falsely write "Queen Victoria flew to the moon in a spaceship in 1887", you can't defend the falsehood by pointing out that somebody else did fly to the moon in the subsequent century.

The ultimate responsibility for CU's problems is borne by the elected Board of Regents. Preliminary indications suggest that the Regents, in their search for a new CU President, will not hire a reformer--such as former U.S. Senator Hank Brown, who did an excellent job promoting reform when he served as President of the University of Northern Colorado. Instead, the Regents will look for another apparatchik who will attempt to defend the miserable, ultra-p.c., anti-intellectual-diversity status quo in CU's humanities departments.

[David Kopel, March 8, 2005 at 11:12am] 0 Trackbacks / Possibly More Trackbacks

Kopel's Predictions Come True:

In November 2004, I forecast the coming years, and wrote, "By April 2005, international creditors were increasingly unwilling to make long-term loans to the Assad or Khameni regimes." I also predicted that in the first part of 2005, France would lead UN efforts to democratize Lebanon and Syria. These and other predictions can be found in my essay "How Hillary Clinton Won the Presidential Elections of 2008 and 2012."

[David Kopel, March 8, 2005 at 1:01am] 1 Trackbacks / Possibly More Trackbacks

In Defense of Law School Exams:

Traditional law school exams certainly don't encompass all the skills of being a good lawyer--nor could they. It would be very difficult to design an exam to test the maturity, common sense, and wisdom of a good divorce lawyer, who helps the client get through a major life change without unnecessary additional trauma.

But law school exams are very good at testing most of the subset of lawyering skills which law schools teach well--including the ability to think quickly. Yes, three hours is a short time to analyze three or four major problems, and spot the key issues, and the important secondary issues, in every single problem. However, much real-life lawyering is done under intense time pressure. You have to think quickly when you're a rookie defense attorney speaking for your client before the court. Or when you're a young corporate associate having to draft an emergency brief in 12 hours. Or when you're a citizen-activist/advocate (as so many lawyers are) speaking for your cause on talk radio or in a local TV news interview.

There are many lawyerly skills (such as writing law review articles, or appellate briefs when not under time pressure) for which quick analysis is not necessary. Students can get recognized for such skills in research classes. For almost any young lawyer, and therefore for almost any employer of young lawyers, the quick-thinking abilities which law school exams accurately (usually) rank are very important skills.

[David Kopel, March 7, 2005 at 1:08pm] 1 Trackbacks / Possibly More Trackbacks

University of Colorado President Resigns:

University of Colorado President Betsy Hoffman has just announced her resignation, effective June 30, 2005, or whenever a successor is named. In her time as President, Hoffman proved to be an excellent fund-raiser, and--until recently--a popular spokesperson for CU. She had no interest, however, in attempting even the mildest reforms of the far left's stranglehold on the humanities at CU, and its suppression of intellectual diversity.

[David Kopel, March 1, 2005 at 7:55pm] 3 Trackbacks / Possibly More Trackbacks

Ward Churchill and the Jeffries Case:

Stone Court raises some interesting issues regarding my recent post regarding the 199 University of Colorado professors who signed a petition demanding the termination of the Regents' inquiry about Ward Churchill's misconduct.

Jeffries is a Second Circuit case in which the Supreme Court, pursuant to the recently-decided Supreme Court case Waters v. Churchill, reversed a previous decision of the Second Circuit. On remand, the Second Circuit upheld the decision of the Regents of the City College of New York to strip Jeffries of his chairmanship of the Black Studies Department, because of the Regents' reasonable concerns that Jeffries' off-campus racist speech would disrupt the operation of CCNY. Although Jeffries is a Second Circuit case, the Supreme Court's involvement gives the case national significance; Jeffries is an important case suggesting that the University of Colorado Regents' investigation of Churchill, based on the disruptive effects of Churchill's own hate speech, is perfectly lawful. And accordingly, the CU 199's assertion that the investigation is a violation of the First Amendment is extremely implausible.

Stone Court does not seriously dispute this point, but instead raises a separate issue from the Jeffries case. Waters v. Churchill set a fairly loose standard for the dismissal of public employees based on the potentially disruptive effects of employee speech. In the Second Circuit remand, an amicus brief from a group of university professors urged the Second Circuit to carve out a special academic freedom exception to Waters v. Churchill. The Second Circuit declined to do so, explaining that there was no need to consider the issue, because Jeffries had not lost his academic freedom; he was still teaching at CCNY. Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired.

This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech.

One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized.

But in the Ward Churchill case, I think that termination would probably be the proper remedy, and that Jeffries provides Churchill with less protection than Stone Court realizes. That the Second Circuit declined, on the facts of the case, to consider whether to create an academic exception to Waters v. Churchill does not mean that the Second Circuit (or, more relevantly, the Tenth Circuit) would create such an exception in a case where the issue was properly before the court. There is no such exception currently in the law, although the Second Circuit's statement in Jeffries does at least imply that creating an exception would be worth a court's consideration, in a proper case.

So if the CU Regents fire Churchill because of the disruptive effects of his speech, it's possible that the Tenth Circuit might create a Waters exception for Churchill's benefit. But the possibility that such an exception might be invented by some court in the future does not mean that the Regents' investigation is presently improper, or that firing Ward Churchill pursuant to the black-letter law of Waters v. Churchill would be a violation of the Regents' obligation to obey the First Amendment as it is currently interpreted.

Moreover, the history of the Jeffries case is hardly helpful to Ward Churchill. After the trial in the Southern District of New York, district Judge Conboy lambasted CCNY for demoting Jeffries solely because of Jeffries' off-campus hate speech, despite an abundance of evidence which clearly would have supported demoting (or firing) Jeffries and would have left him with no First Amendment counter-argument. For example, Jeffries had threatened to kill a student newspaper reporter. Judge Conboy also affirmed that the First Amendment does not require colleges to subject their students to the classroom ravings of incompetent "pseudo-scholars."

As my previous post argued, there appears to be an abundance of evidence to support the termination of Churchill's employment, on grounds which offer Churchill no shred of a First Amendment argument. Such grounds include academic fraud, and violation of the Colorado statute requiring all public university professors to take and obey an oath to support the U.S. and Colorado Constitutions. Well-established Colorado caselaw affirms that such an oath is violated when a professor calls for the violent overthrow of the U.S. and Colorado governments, as Churchill has done repeatedly.

Much of the evidence of Jeffries' professional misconduct (which CCNY failed to use when demoting Jeffries) was brought to public attention as the result of the public uproar following Jeffries' hate speech in Albany. By castigating CCNY for failing to base its actions on such evidence, Judge Conboy implied that it would be proper for a college to use such evidence as grounds for disciplining a professor. Accordingly, the assertion of the CU 199 that the University must ignore the developing evidence of Churchill's misconduct is implausible.

One small point: I criticized the University of Colorado administration for failing to act on complaints about Churchill's misconduct (including a violent threat against another faculty member) which were brought to the administration in the 1990s. Stone Court writes: "The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment." Not so. I don't know if Churchill was simply the beneficiary of lax enforcement of rules for faculty in general; even today, the administration does nothing to enforce the university rule that professors should not politicize their classroom or verbally attack students because of the students' political views. Alternatively, if the administration was specially lax with Churchill, the reason might be that Churchill received favorable treatment on "diversity" grounds, because he was (supposedly) an American Indian. The latter theory is especially plausible because University records show that Churchill was hired for an affirmative action job counseling minority students, was later given a teaching position, and was later pushed for tenure by the administration (two departments rejected him, but a third acceded to the administration's request) based on the administration's belief that Churchill is an Indian.

[David Kopel, March 1, 2005 at 1:19pm] 0 Trackbacks / Possibly More Trackbacks

Alabama Sex Toy Case:

Glenn Reynolds denounces the 11th Circuit for upholding an Alabama ban on the sale of sex toys, and links to a newspaper column criticizing the opinion. In a 2000 article in the Hastings Constitutional Law Quarterly, Reynolds and I argued that such cases can be resolved without need to address the question of a constitutional right of sexual privacy: laws such as Alabama's are void because they are not within the scope of the state's "police power."

[David Kopel, February 28, 2005 at 12:03pm] 6 Trackbacks / Possibly More Trackbacks

Professors not opposed to Academic Fraud and Terrorism:

One hundred and ninety-nine faculty members at the University of Colorado at Boulder dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill. Although the University of Colorado has many distinguished professors, the advertisement makes it clear that the University also has some professors with insufficient concern about academic and professional integrity. The Denver Post article on the ad is here; the Daily Camera ad itself is not on the web--although it would be a good idea for someone to place the ad on the web, as a permanent record of where some CU's faculty stood.

The advertisement purports to defend "Professor Churchill's right to speak what he believes to be the truth." This statement ignores the fact--which is perfectly obvious to to anyone who has been reading Colorado newspapers over the last several weeks--that Churchill is a consummate liar. There is overwhelming evidence--which Churchill has failed to refute in even a minimally plausible way--of the following falsehoods by Churchill:

As detailed by Lamar University's Thomas Brown, Churchill's writings claim that the U.S. Army deliberately caused an 1837 smallpox epidemic among the Sioux by distributing infected blankets. Yet the very sources cited by Churchill state that the epidemic was accidentally spread by travelers and that the army had nothing to do with it.

As detailed by the University of New Mexico law school's John LaVelle in the American Indian Quarterly and the Wicazo Sa Review, Churchill has lied about the 1887 General Allotment Act (falsely claiming that the Act required proof of a certain percentage of Indian blood in order for a person to be eligible to be allotted personal land on Indian reservations) in six books and eleven essays. LaVelle further demonstrates multiple instances of plagiarism by Churchill and of citing sources for the opposite of what they really said.

Churchill's academic career has also included time as Instructor of studio art and art history at Black Hills State College, and he promoted himself as an "Indian artist" until a 1990 law federal prohibited non-Indians from selling their work as Indian art. As detailed detailed by KCNC television, Churchill's 1981 serigraph "Winter Attack" is plagiarized from a nearly identical painting by the renowned artist Thomas Mails. Churchill merely reversed the left-to-right imagery, and colored a bush green.

"Professor Churchill's right to speak what he believes to be the truth" does not protect Churchill's apparently false claims that he received paratrooper training the Vietnam War, and that he served in a long-range reconnaissance patrol unit--although his military records show that he was instead in the motor pool. Mount Holyoke history professor Joseph Ellis was stripped of his endowed chair and suspended without pay for a year because of similar lies about his own Vietnam record.

As detailed by KHOW's radio's Dan Caplis and Craig Silverman and by the Pirate Ballerina weblog, Churchill's entire academic career has been based on advancement through his bogus claim to be part Indian.

The CU 199 purport to "defend an environment in which ideas may be openly exchanged." Yet Churchill himself has attempted to destroy such an environment, at CU and around the nation. Two former students have alleged that their grades were lowered in retaliation for their exercise of freedom of speech. (One student wrote a campus newspaper article reporting the evidence that Churchill is not an Indian; another student suffered retaliation for disagreeing with Churchill's statements in class that the 1995 Oklahoma City bombing was a good thing.) A CU professor reported that Churchill physically threatened her because she favored naming a building after a retired administrator, rather than after an Indian tribe, as Churchill preferred. Churchill called for the murder of anarchist writer Bob Black. He called for the death of a student newspaper cartoonist who had criticized a racist professor in Hawaii who wrote about her fantasy of mutilating and killing a white woman.

Although CU professors are required by state law to sign an oath to support the Constitution of the United States and the Colorado Constitution, Churchill has repeatedly called for the violent overthrow of the U.S. government, and has urged his audiences to perpetrate 9/11 type terrorist attacks in the United States. In doing so, he has provided explicit instructions about where the attacks should take place, and how the attacker should dress so as to be able to get to the target.

Now perhaps Churchill has credible defenses to the above charges, but if so, we have not yet heard them. There is overwhelming evidence that the University of Colorado's current investigation of Ward Churchill's conduct is well-grounded. For the CU 199 to claim otherwise is foolish. The CU 199 allege that to investigate Churchill undermines "the very idea of the university itself." To the contrary, the very idea of a university depends on professors who do their work honestly, rather than with fraud and plagiarism, and depends on professors who respond to their intellectual foes by using counter-arguments, rather than by threatening and promoting violence and homicide. That 199 professors could defend a fraudulent thug and bully like Ward Churchill shows how very far the University of Colorado has fallen from the very idea of a university itself.

UPDATE: Although the CU 199 never say so explicitly, the ad appears to adopt the theory of Churchill's attorney, David Lane, that none of Churchill's litany of misconduct can be the basis for firing him, because the current investigation of Churchill was started by the Regents after Churchill's infamous "little Eichmanns" essay became the subject of public controversy. The ad from the CU 199 states that "the investigation of Professor Churchill's scholarly record has been initiated in direct response to criticisms of his ideas and without any prior format complaint of specific professional or academic misconduct on his part."

The claim of the CU 199 is wrong as a matter of fact, and as a matter of law. According to articles in the Denver Post and Rocky Mountain News (Post archives are available on the web; Rocky archives are not), there have been repeated complaints made to the administration about Churchill's misconduct in the classroom and his threats. Further, as reported in Westword in 1994, the National American Indian Movement filed a complaint with the University of Colorado about Churchill's ethnic fraud. As was the norm at CU, none of these complaints appear to have resulted in any administrative action. Given such repeated failures, it is within the Regents' discretion to order their own investigation.

Further, as the Second Circuit case of Jeffries v. Harrelston makes clear, there was nothing improper about the initiation of an investigation following the uproar regarding Churchill's hateful comments. In Jeffries, the head of the Black Studies Department at the City College of New York was stripped of his chairmanship following the uproar resulting from a crackpot racist speech he gave in Albany. The Second Circuit explained that the City College Regents could demote Jeffries "based upon a reasonable prediction that the Albany speech would disrupt university operations." The CU Regents certainly had the right to order the torpid CU administration to conduct an investigation of similar issues. (Although ordered by the Regents, the investigation is being conducted by three CU administrators, two of whom appear to have brushed off previous complaints about Churchill.)

Implicit in the ad from the CU 1999 is that the issues of academic fraud and plagiarism are off-limits because no-one has made a "formal complaint" to the CU administration. But there is no rule that a university must blind itself to a professor's fraud and other misconduct unless someone files a "formal complaint." There certainly should be an inquiry, however, about why the CU Arts & Sciences administration failed to take action following the publication of Professor LaVelle's articles in the late 1990s, and failed to respond to a formal complaint which someone filed with CU about Churchill promoting terrorism at a speech in Minnesota.

Moreover, Churchill's book on the Justice of Roosting Chickens, which contains the "little Eichmanns" essay, is itself a very fit starting point for an inquiry into Churchill's scholarly competence; most of the book is a crackpot history of the United States, filled with obviously incompetent statements. Churchills calls George Washington was "the richest man in North America" during the revolutionary war. Churchill writes about "Future president Alexander Hamilton." He asserts that white people "demonstrably perpetrate crimes at rates as great or greater than persons of color." For this last claim, he supplies a footnote which does not support the claim; in fact, whether one relies on victim surveys or on arrest data, data overwhelmingly show higher crime rates among people of color. Churchill tells his readers that in 1980 the CIA operated in Jamaica "subverting military and police officials into undermining and ultimately deposing the liberal left government of Michael Manley." Actually, Manley did charge that his political opponent, Edward Seaga, was supported by the CIA, but Manley was not deposed; he lost the 1980 election, then returned to power after winning the 1989 election.

In short, the Jeffries case affirms that Regent concern about the disruptive effects of Churchill's hate speech was a lawful, constitutional grounds for commencing an investigation of Churchill's academic record. Although the University of Colorado's administration had repeatedly failed to take action in response to formal complaints about Churchill, the Regents' investigation is under no stare decisis requirement to emulate the administration's errors. Nor are the Regents obliged to ignore additional, substantial evidence of misconduct which has been uncovered by the media in recent weeks. The media have a First Amendment right to write articles and produce radio programs on subjects of interest to their audience and themselves. Churchill has no First Amendment right to silence the media simply because media interest in him was initially provoked by his mean-spirited essay celebrating the 9/11 attacks. Nor are the Regents or the CU administration required by the First Amendment to blind themselves to the new evidence of Churchill's misconduct which the Colorado media have been exposing on an almost-daily basis.

Churchill should not be fired because he is a hate-monger, but the CU Regents have the legitimate authority to investigate whether Churchill's hate-mongering disrupts the University of Colorado, and they have no duty to ignore evidence which is brought forward by third parties that Ward Churchill is an academic fraud. Nor are the Regents obliged to ignore the catastrophic liability that CU could face if one of Churchill's acolytes follows Churchill's instructions to perpetrate a 9/11 style terrorist attack.

The CU 199, however, simply elide these issues. Some of the 199 have impressive records of scholarship in their own specialties; others appear to be politically correct hacks. But the terrible judgment of 199 faculty members in attempting to protect a bully who is unfit to teach in any institution, let alone a state's flagship university, will provide prospective students and parents with further reason to doubt that true intellectual diversity and freedom can be found at CU Boulder.

[David Kopel, February 26, 2005 at 2:38pm] 0 Trackbacks / Possibly More Trackbacks

New Media Analysis

My latest media column for the Rocky Mountain News examines the Baby 81 hoax from Sri Lanka (in which, supposedly, nine families claimed the same baby who was recovered from the tsunami). I also look at media coverage of the UN rape scandals, and of the Saudi high school in Virginia which produced the alleged would-be assassin of President Bush.

People interested in following the Ward Churchill controversy should check out the very comprehensive collection of links from Pirate Ballerina. Another indispensable source is the material posted on the webpage of the Caplis & Silverman Show, from KHOW radio. What the links make clear is that the Churchill case is not about the freedom to express unpopular views about U.S. policy; it's about a consummate fraud and bully, who advocates and provides instructions for Americans to commit murderous terrorist attacks within the United States. It is also clear that the University of Colorado has protected Churchill for many years despite knowledge of his misconduct and fraud.

David Kopel, February 24, 2005 at 5:32pm] 1 Trackbacks / Possibly More Trackbacks

Guns and Reason

My new column for Reason.com summarizes the 20th century history of blacks using firearms to protect their communities from white rioters. Black self-defense was explicitly approved by leaders such as W.E.B. DuBois, A. Philip Randolph, Roger Wilkins, Daisy Bates -- and Martin Luther King, Jr.

Also recently published in Reason.com is a review of Abigail A. Kohn's book "Shooters: Myths and Realities of America's Gun Cultures." Kohn is an anthropologist who compares and contrasts the gun cultures of California and Australia. The review is written by my summer intern from 2004, Eric Dzinski.

David Kopel, February 7, 2005 at 3:07pm] 2 Trackbacks / Possibly More Trackbacks

Dutch Schools Ban the Dutch Flag

A Dutch newspaper article explains that many Dutch schools are forbidding the display of the Dutch flag. The Independence Institute's Dutch expert has produced an English translation of the article:

Ban on National Flag is Widespread.

More schools prove to have banned the national flag.

At the Groene Hart Lycee [an elite high school] in the city of Alphen-on-the-Rhine, the three colors that are the Dutch flag have been looked upon as evil for the past year. No symbols that identify specific groups are considered acceptable and any student may be permanently expelled for coming to school with flags on their clothing, shoes or briefcases. Earlier this week readers reacted with fury to another school in IJsselstein, this school forbids any display of flags because this would provoke students of other nationalities.

An angry man reported yesterday that he gets all kinds of verbal abuse from foreigners and leftist intellectuals for driving a dark blue defense department vehicle with a red-white and blue sticker on the back. "I get to hear that I'm a Nationalist and a Fascist. Perhaps they could compose a list of what the Dutch are actually still allowed to do?" he asks sarcastically.

Green Heart High school itself says the regulations and bans are necessary because of the hardened climate in the schools. Not only flags are outlawed, but the wearing of Lonsdale clothes, or shoes with red or white laces, or leather bomber jackets, all of these could, according to the school board, result in discrimination and bad behavior among students. A spokesperson for the school explains: "Sometimes the fat's in the fire all at once and then we must react quickly--this way we show we can weather the problem as well as prevent it." According to the school the students make fewer complaints than the parents. The parents feel the kids are robbed of their own identity. "Everything happens at school after serious discussion only and ban is a big word," say the administrators at the school. The National Bureau of Race Discrimination understands what the schools are trying to do, but they think it makes little sense to ban anything preventively.

The flag of the Netherlands is composed of red, white, and blue stripes, and its roots stretch back to the Dutch war of independence against Spain in the 16th century. At the time, the Dutch Calvinists believed that freedom from Spain's awful dictatorship and the Spanish Inquisition was worth the fight. The independent Netherlands soon became the first nation in Europe to allow genuine freedom of religion.

If the Dutch cannot even defend their right to display their own flag, it seems questionable whether Dutch liberty and independence will survive the 21st century.

David Kopel, February 1, 2005 at 5:15pm] 1 Trackbacks / Possibly More Trackbacks

How to Stop the Darfur Genocide:

The indispensable Strategy Page provides an excellent idea for stopping the Sudanese government's genocide in Darfur:

If international political pressure fails to stop the air attacks in Darfur, how can they be countered? Post 9/11, the US isn't about to pass out Stinger missiles like it did in Afghanistan. The risk that the missiles could end up in terrorist hands is simply too great. If the UN and EU really are outraged by the Sudanese air attacks, they could declare a "no fly zone" in Sudan's Darfur region. The no-fly zone in Darfur would operate like the no-fly zones the US and Britain enforced over northern and southern Iraq after 1991. A dozen French and German fighter aircraft based in Chad could protect the defenseless Darfurian villages from air attack. Is this a likely scenario? Of course it isn't--at the moment the political will does not exist in the UN and EU to take such a decisive military action. Imposing a no-fly zone, however, would save lives.

As I've previously written, the Sudanese genocide has been facilitated by the disarmament of the non-Arab black population, using the types of gun laws promoted by the United Nations, which now refuses to take meaningful action to protect the disarmed victims.