Kopel's Corner weblog archive 2006

This weekend, Congress passed, and sent to the President for his signature, the Homeland Security appropriations bill, H.R. 5441. The Conference Report of the bill includes a variety of non-appropriations measures to enhance homeland security. The most notable of these is the construction 700 miles of fence along the portions of the Mexican border which are the main transit zones for illegal aliens. Also included in the legislation is a ban on gun confiscation during emergencies and natural disasters, to prevent a repeat of the post-Katrina abuses such as law enforcement officers breaking into homes and confiscating firearms from law-abiding citizens.

The new legislation is a modified version of H.R. 5013, by Louisiana Representative Bobby Jindal, which overwhelmingly passed the House in July, and which I wrote about here.

The full text is below, preceded by my summary.

Summary: (a). The bill applies to all law enforcement, including state and local. (Formally, it applies to federal law enforcement, plus anyone receiving federal funds or assisting federal law enforcement. In a disaster, this means almost everyone.) It bans gun confiscation, gun registration, and restrictions on where a firearm may be possessed; confiscation, registration, and restrictions pursuant to existing laws are still allowed. People who are assisting federal disaster relief, and who are allowed to carry firearms under existing law, may not be forbidden to do so.
(b) When mass transit is being used for evacuation (e.g., busses out of New Orleans), passengers can be required to surrender their firearms for the duration of the trip, and then reclaim the firearms when the trip is over.
(c) A person victimized by a violation of this law can sue in federal district court; a prevailing plaintiff will be awarded attorney fees.

SEC. 557. Title VII of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5201) is amended by adding at the end the following:

‘‘SEC. 706. FIREARMS POLICIES.
‘‘(a) PROHIBITION ON CONFISCATION OF FIREARMS.—
No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
‘‘(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
‘‘(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
‘‘(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
‘‘(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
‘‘(b) LIMITATION.—Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
‘‘(c) PRIVATE RIGHTS OF ACTION.—
‘‘(1) IN GENERAL.—Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.
‘‘(2) REMEDIES.—In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
‘‘(3) ATTORNEY FEES.—In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.’’.

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[David Kopel, September 26, 2006 at 3:10pm] 1 Trackbacks / Possibly More Trackbacks

Gun Control: Does the UN Protect Women’s Rights?

In a new article on ChronWatch, Howard Nemerov recounts some of the atrocities of sexual abuse perpetrated by UN "peacekeepers" against women. He also reports how some women in Liberia have joined rebel groups in order to obtain firearms to protect themselves from sexual assault.

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[David Kopel, September 13, 2006 at 6:29pm] 1 Trackbacks / Possibly More Trackbacks

UN's New Attack on Law-Abiding American Gun Owners:

Advanced Topics in Human Rights Law. Exam, Spring 2010. Question 4: One day, a woman goes to a gun store in Florida. She provides picture identification to the store owner, who then, pursuant to the National Instant Check System, uses his telephone to contact law enforcement, and ensure that the woman has no criminal record. The woman then purchases an expensive double-barreled shotgun, manufactured in the United Kingdom. She plans to use the gun for all lawful purposes, but primarily for sporting clays. In accordance with Florida law, she did not need to obtain a government license to possess the gun.

Two years later, a man breaks into her home at night. The woman reasonably (and correctly) believes that the man intends to rape and torture her. She also, correctly, believes that there is absolutely no possibility that the man will kill her. She shoots the man and kills him.

Summarize the human rights violations

Answer:

1. The United Kingdom violated human rights by allowing the export of small arms to the United States for retail sale, under conditions which the U.K. knew (or through due diligence should have known) made it likely that the arms would be used to violate human rights. The Arms Trade Treaty was proposed in the fall of 2006 in the United Nations General Assembly by Australia, Argentina, Costa Rica, Finland, Japan, Kenya and the United Kingdom. Those nations, and many others, later ratified the treaty. The treaty makes it illegal to export small arms to a nation when it is likely that the arms will be used to violate human rights.

Almost all of the public discussion of the ATT focused on violations of "traditional" human rights — such as selling arms to the Burmese police, some which would be used to murder peaceful dissidents. However, the text of the ATT applies to all human rights violations, include newer human rights. The U.K. knew or should have known that its export of arms to the civilian market in the U.S. would lead to the human rights violations detailed below.

2. The United States and the State of Florida violated human rights by allowing the woman to possess a firearm without a license. The July 27, 2006, Final Report of the United Nations Special Rapporteur on the use of small arms in human rights violation stated:

16. Minimum effective measures that States should adopt to prevent small arms violence, then, must go beyond mere criminalization of acts of armed violence. Under the principle of due diligence, it is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them....The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons. These licensing criteria are not insurmountable barriers to legitimate civilian possession. There is broad international consensus around the principle that the laws and procedures governing the possession of small arms by civilians should remain the fundamental prerogative of individual States. While regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations - there is in fact almost universal consensus on the need for reasonable minimum standards for national legislation to license civilian possession in order to promote public safety and protect human rights. This consensus is a factor to be considered by human rights mechanisms in weighing the affirmative responsibilities of States to prevent core human rights violations in cases involving private sector gun violence.

Neither Florida nor the United States require a license to possess a gun. Nor did either government require any "proof" that the woman had "a legitimate purpose for obtaining a weapon." Notably, even if the woman had lived in an American state or city with more restrictive laws, there still would have been a human rights violation. Only a minority of jurisdictions have licensing system, and of those, many require a license only for hand guns (not long guns), and require a license only for purchase — rather than a license for continuing possession, which must be periodically renewed. Notably, even the most restrictive jurisdictions (e.g., New York City for handguns) do not require a purchaser to prove that she has a legitimate purpose. Hence, any export of firearms for civilian sale to the U.S. is per se human rights violation.

On August 21, 2006, the UN Human Right Council's Subcommission on the Promotion and Protection of Human Rights endorsed the Frey Report in toto, and recommended that the full Human Rights Council do so. The HRC later did so.

Although the Arms Trade Treaty has been signed by President Clinton, it has never been brought to the Senate floor for ratification. However, the ATT, as well as the decisions of the HRC, are relevant guides to the interpretation of U.S. and Florida constitutional provisions, including those which forbid the deprivation of life without due process. The principle that unratified treaties (such as the Convention for the Elimination of All Forms of Discrimination Against Women), or treaties to which the United States could not even be a party (such the African Charter on the Rights and Welfare of the Child) may be used in interpreting the human rights provisions of the U.S. Constitution is well-established by Supreme Court precedent. Significantly, the ATT and the HRC standards on gun control have been endorsed by several international bodies, as well as international organizations concerned with human rights, including Amnesty International, the World Council of Churches, and the International Action Network on Small Arms.

3. Finally, the woman's use of gun violence against the man was also a human rights violation. This gun violence was also accountable as a human rights violation by the State of Florida. According to the Frey Standards adopted by the UN Human Rights Council, self-defense is not a human right. Rather, "When small arms and light weapons are used for self-defence, for instance, unless the action was necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-defence will not alleviate responsibility for violating another’s right to life." (Para. 26). Moreover, "Because of the lethal nature of these weapons and the jus cogens human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged." Under international law, a jus cogens standard supersedes any contrary rule. The constitutions of the United States and of Florida, as well as numerous human rights treaties ratified by the United States, recognize the government's obligation not to take life unjustifiably. As the Frey Report details, a government's failure to enact sufficiently stringent gun control laws (discussed in item 2, above) and to enact sufficiently stringent restrictions on self-defense constitute a governmental failure to exercise due diligence, and consequently a violation of the right to life.

The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture, and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. The use of deadly force against an attack which is not life-threatening is plainly disproportionate, and a violation of the HRC standards.

Florida--like many other American states--compounds its human rights violation by not requiring that the defender use less-than-deadly-force if lesser force would sufficient to stop the violent felony.

Extra credit: Although the law regarding private suits for human rights violations is still evolving, the estate or relatives of the man who was the gun violence victim might have a cause of action in a U.K. or European Court to sue the firearms manufacturer, and also to sue the United Kingdom itself. Further, the estate/relatives of the gun violence victim could sue the State of Florida, and the United States, for violating his right to life. The suit would be based on section 1983 of the Civil Rights Act, which encompasses private lawsuits for the deprivation of federal civil rights, including the right not to be deprived of life without due process. The American court, following the lead of the U.S. Supreme Court, could use international law standards, such as the HRC standards, in determining the scope of a government's duty regarding the right to life.

The federal Protection of Lawful Commerce in Firearms Act, and its Florida analogue, prohibit a lawsuit against the manufacturer, wholesaler, and retailer of the shotgun. Florida law prohibits a lawsuit against the gun violence perpetrator, because the perpetrator was acting within the scope of Florida self-defense law when she shot the victim. However, the estate/relatives could argue the all the statutes mentioned in this paragraph are unconstitutional, because the are contrary to the right to life guaranteed by the federal due process clause, as informed by the evolving standards of international human rights, as defined by the UN Human Rights Commission.

As the Frey/HRC observed, the "regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations." If the victim's human rights lawsuit were brought before a judge who was sympathetic to such manufacturers or organizations, it is unlikely that the suit would succeed. However, there are many judges who do not have such sympathies. Thanks to the flexibility of international law, and the evolving practice in U.S. constitutional interpretation of using international law guidelines, it would be possible for the lawsuits to result not only in monetary damages, but also in injunctive relief, and the judicial negation of the state and federal laws on self-defense and gun control which violate international human rights.

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Taiwan's Right to Representation in the United Nations:

Today the United Nations General Assembly convenes in its 61st session. Unfortunately, the legitimacy of the General Assembly, and of the United Nations itself, is undermined by the exclusion of the free, democratic, and independent nation of Taiwan from membership--in contravention of the UN Charter.

It might seem futile even to raise the issue of Taiwan's exclusion, since China is adamant that Taiwan will never be admitted to the United Nations. But even though a great power may persist for decades in trying to block the admission of an independent state to the UN, diplomatic circumstances and priorities can change, over time — as was demonstrated, for example, by the awarding of the China seat to the Mao regime in 1971 (following decades of U.S. opposition). In any case, it is important for the public and the diplomatic community to recognize the illegitimacy of Taiwan being denied its rightful place in the United Nations.

The UN Charter, article 4, states that "Membership in the United Nations is open to all other [non-founding] peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." Taiwan is indisputably a "peace-loving" state — in marked contrast to China, which not only makes threats against Taiwan, but supplies arms and financial support to warlords, dictators, and genocidaires around the world, including in Sudan.

Since Taiwan is "peace-loving," it is necessarily entitled to UN membership, according to the UN Charter, as long as Taiwan is a "state" that is capable of carrying out various UN obligations. Plainly Taiwan is such a state.

Taiwan is self-governing. Indeed, Taiwan exercises far more complete self-government than has been exercised by some UN member states — such as Lebanon during its period of colonization by Syria, or the Warsaw Pact nations during the period of Soviet hegemony.

Taiwan encompasses a well-defined territory, consisting of the island of Taiwan itself, plus dozens of smaller islands in the Taiwan Strait, the most important of which are the Pescadores. In contrast, some UN member states (such as India and Pakistan) have disputed or unresolved borders.

Taiwan's government is sovereign over its entire territory. Again, some UN member states do not exercise full sovereignty over their nominal territories; for example, Pakistan has only limited control over the northwest frontier province and the federally administered tribal areas. Likewise, Lebanon's government is far from fully sovereign in southern Lebanon.

In addition, Taiwan's population of over 23 million is larger than most UN member states. Taiwan has developed a republican form of government, and achieved a very good record on human rights — putting Taiwan far ahead of scores of UN member states, and much closer to full compliance with the founding ideals of the United Nations, as well as the many UN human rights treaties and declarations.

As the Declaration of Independence explains, self-government is the foundation of legitimate sovereignty; accordingly, Taiwan's current democratically-elected government exercises a legitimate sovereignty which is not possessed by the dictatorship in China nor by the dozens of other dictatorships which have UN delegations.

Taiwan clearly fulfills the four criteria of de facto statehood, as articulated in Article 1 of the 1933 Montevideo Convention: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." Notably, even if China succeeded in convincing every country in the world to terminate formal diplomatic recognition of Taiwan, Taiwan would still, legally, be an independent state; as Montevideo's article 4 declares: "The political existence of the state is independent of recognition by the other states."

In 1971, the United Nations gave the China seat at the UN to the Mao Zedong dynasty, the seat having formerly been held by the Chiang Kai-shek dictatorship. The UN's decision was reasonable: the Chiang regime had lost the Chinese civil war in 1949, and, although the regime still made a nominal but ridiculous claim to rule China, it was clear in 1971 that for the last 22 years, the sovereign in China had been Mao, not Chiang, and there was no prospect of that situation changing. Resolution 2758 addressed solely the question of which regime was entitled to hold the "China" seat, and did not purport to resolve anything regarding Taiwan's independence.

The Mao dynasty in China has, since 1949, claimed sovereignty over Taiwan, but never has actually exercised a shred of sovereignty. Fifty-seven years of actual independence is more than sufficient for the Taiwan to deserve recognition as an independent state.

In terms of the right to admission to the United Nations, all that matters is Taiwan's status now as an independent, peace-loving state. Even if Taiwan had been part of China for 3,500 years, the most recent 57 years of independence entitle Taiwan to UN membership. However, it should be noted that the historical and international law record is more supportive of Taiwan's independence than of China's claim to sovereignty over Taiwan.

The history of Chinese government is very old, dating back to the Shang dynasty in the middle of the second millennium BC. Many Chinese dynasties rose and fell in the following centuries — but not until three thousand years later did any government on the continent of Asia claim to rule even a portion of the island of Taiwan. (However, the Quemoy Islands, which are very close to the Chinese coast, and which are currently ruled by the Taipei government, were historically part of China.) In 1683, China's government did establish some control over western Taiwan, and this control lasted for two centuries. For almost all of this period, the Chinese explicitly denied that they were sovereign over eastern Taiwan. One purpose of the denial was to avoid taking responsibility for the pirates who operated from eastern ports; and the Chinese's government's inability to suppress the pirates is one indication that China was correct in claiming not to exercise sovereignty in the east.

Only for 17 years (some other historians say 8 years) in the late 19th century did China actually declare sovereignty over all of Taiwan. This is trivially short period in the scope of Taiwanese and Chinese history.

Significantly, China renounced any claim to sovereignty over Taiwan, in the 1895 Treaty of Shimonoseki, and Taiwan was ceded to Japan. Japan ruled the entire island of Taiwan from 1895 to 1945 — that is, three times as long a China ruled the entire island. Ever since the sixteenth century, Japan had claimed sovereignty over eastern Taiwan. Thus, Japan's claim of sovereignty over one side of the island is actually two centuries longer and more senior than China's claim of sovereignty over the other side. Today, we would hardly claim that Japan's historical record of sovereignty over Taiwan entitles Japan to rule Taiwan against its will; a fortiori, the weaker record of Chinese sovereignty cannot give China a right to rule Taiwan against its will.

In the 1951 San Francisco Peace Treaty, which formally ended World War II, and the 1952 Treaty of Taipei (between Japan and Taiwan), Japan renounced all claims to Taiwan. Significantly, neither treaty stated that Taiwan was now part of China.

In the unsigned 1943 Cairo Declaration, Roosevelt, Churchill, and Chiang stated that "Manchuria, Formosa [Taiwan's Japanese name], and the Pescadores, shall be restored to the Republic of China." Although it is doubtful that Cairo created binding international law, the literal effect of the language is consistent with Taiwan's current, independent existence as the "Republic of China," and inconsistent with Taiwan being subsumed into the "People's Republic of China"; certainly the Communist tyranny which Mao hoped to establish was not an intended beneficiary of the Cairo Declaration. To the contrary, the intent of the parties of the Cairo Declaration would be to construe each and every word against a Mao regime and its successors. The Cairo Declaration is also referenced in the Potsdam Declaration.

The fact that China persists in a claim of sovereignty of Taiwan, and sometimes makes military threats, cannot be considered a proper reason for denying UN membership to Taiwan. After all, North Korea and South Korea were each admitted to the UN, even though the North Korean tyranny claims sovereignty over South Korea, and legally remains in a state of war with South Korea. (The Korean War was ended by an armistice, which was executed in the expectation that a peace treaty would be negogiated later, but there has been no such treaty.)

During a 1998 visit to China, President Clinton said that he opposed admitting Taiwan to the United Nations. The U.S. House of Representatives promptly rebuked him, voting 390-1 for a Resolution (H. Con. Res. 301) by which Congress "affirms its strong support, in accordance with the spirit of the Taiwan Relations Act, of appropriate membership for Taiwan in international financial institutions and other international organizations."

Rather than kowtowing to the Chinese dictatorship, all freedom-loving nations and peoples should stand in support of Taiwan's right to self-determination and to membership in the United Nations.

Further reading: Parris Chang & Kok-ui Lim, "Taiwan's Case for United Nations Membership," UCLA Journal of International Law and Foreign Affairs (1997).

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Jewish Boxing, Fencing, and Self-Defense

A recent post on David Hardy's fine weblog, Of Arms & the Law, discusses the great English Jewish boxer Daniel Mendoza. So I thought I would add what I know about Jewish boxing, along with a bonus paragraph on Jewish fencing.

Beginning in 1760, British Jews began to participate in the sport of boxing. The English champion from 1791-95 was Daniel Mendoza, whose innovative technique relied on speed and skill rather than pure force.

As the political reformer Francis Place explained, before Mendoza:

Dogs could not be used in the streets in the manner many Jews were treated. One circumstance among others put an end to the ill-usage of Jews....[Mendoza became famous and set up a boxing school for young Jews.] The consequence was in a very few years seen and felt too. It was no longer safe to insult a Jew unless he was an old man and alone....But even if the Jews were unable to defend themselves, the few who would now be disposed to insult them merely because they are Jews, would be in danger of chastisement from passers-by and of punishment from the police.

Thus, when Jews began to defend themselves, they demonstrated that they were worthy of being defended-—and so good-hearted gentiles also began to defend Jews.

In the 1920s in the United States, Jews were the major ethnic group engaged in professional boxing—-mainly for the same economic reasons that many low-income groups gravitate towards boxing. Jews remained prominent in the 1930s, after which Jewish participation waned as Jews climbed the socio-economic ladder, and found easier ways to make a living.

In the Jewish boxers, one could see what historian Irving Howe called the "New Jewish Character," which was "active, not passive, subject, not object, erect, not bowed, combative, not acquiescent."

The first American boxer to play a prominent role in public affairs was Barney Ross, who won the lightweight, junior welterweight, and welterweight championships. He retired from boxing in 1938, enlisted in the army after Pearl Harbor, and was wounded at Guadalcanal, earning a Silver Star for rescuing soldiers from a Japanese ambush. After returning to the United States, Ross played a very public role in Zionist groups pressuring the American government to help Jewish refugees, and recruiting Americans to assist the Irgun (Menachem Begin’s fighting group in British Palestine).

In 1915, Louis Brandeis explained how Zionism was reforming the Jewish character, so that Jews would fight for their rights, rather than submitting to anti-Semitism:

[Zionism’s] effect upon the Jewish students of Austrian universities was immediate and striking. Until then they had been despised and ill-treated. They had wormed their way into appointments and into free professions by dint of pliancy, mock humility, mental acuteness, and clandestine protection. If struck or spat upon by "Aryan" students, they rarely ventured to return the blow or insult. But Zionism gave them courage. They formed associations, and learned athletic drill and fencing…..[P]resently the best fencers of the German fighting corps found that Zionist students could gash cheeks quite as effectually as any Teuton, and that Jews were in a fair way to become the best swordsmen of the university. Today the purple cap of the Zionist is as respected as any academic association.

Sources: Allen Bodner, When Boxing Was a Jewish Sport (Westport, Conn.: Praeger, 1997).

Irving Howe, Introduction to The Legacy of Jewish Migration, ed., David Berger (N.Y.: Holt, Rinehart & Winston, 1983), p. 28.

Louis D. Brandeis, Brandeis on Zionism: A Collection of Addresses and Statements by Louis D. Brandeis (Union, N.J.: The Lawbook Exchange, 1999)(1st pub. 1942), p. 32 (June 1915 speech, "The Jewish Problem and How to Solve It").

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Colorado Governor's Race:

The race for governor in the purple state of Colorado features Democrat Bill Ritter (former D.A. of Denver) versus Republican Bob Beauprez (U.S. Rep. of the 7th C.D., south and east of Denver). According to the Denver Post, Ritter recently told a meeting of "several members of the state's business elite" that he agreed with 38 of Owens' 47 vetoes in 2005. Award-winning political columnist (and retired 22-year legislator, and my father) Jerry Kopel calls on Ritter to disclose to everyone which bills he would vetoed. My father also urges the state legislature's Democratic leadership to "talk some sense into him about how far he can go in losing the Democratic base and alienating Democratic legislators or nominees in order to ensure funding from the 'business elite'."

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War on Drugs versus War on Terrorists:

During the recent war against Israel, Hezbollah used night vision equipment which had been supplied by Iran, as detailed in a new article by the Jewish Institute of National Security Affairs. Iran had obtained the equipment from the United Kingdom to "bolster Iranian efforts to combat heroin smuggling across the Afghan border as part of the UN Drug Control Program." The U.K. was extremely foolish to expect the Iranian tyrants to keep their promises not to divert the equipment to military use.

This is far from the only example of how excessive zeal in the drug war undermines the national security interest of democracies. A similar problem is evident in Latin America, as Mike Krause and I wrote in "A Foreign Policy Disaster," a chapter in the book The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004).

Related Posts (on one page):

The War on Drugs vs. The War on Terror
War on Drugs versus War on Terrorists:

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Colorado Shakespeare Festival 2006:

Do you want to be happy, or do you want to think deep thoughts? At this summer’s Colorado Shakespeare Festival, at the University of Colorado at Boulder, you can do both, although not on the same night.

If you want to laugh, then see As You Like It, a comedy for the CSF seems to have a particular talent. The previous CSF production of As You Like It, in 2001, was sparkling and wonderful, and so is this version, but in a very different way.

This time around, As You Like It is turned into a “screwball comedy.” The screwball comedy, which was especially popular in the late 1930s and early 1940s, was based on the comic juxtaposition of opposites – rich vs. poor, urban vs. rural, and male versus female. In As You Like It, the heroes, having been betrayed by their older relatives, flee to the Forest of Arden. In the Boulder production, the forest is the rural south of the 1930s.

The male hero of the screwball comedy is often good-hearted, simple, and naïve, while the female is a wily, deceitful fast-talker. The improbable film plots succeed on the strength of excellent leads and their witty dialogue.

Director Gavin Cameron-Webb transforms As You Like It into screwball mode so seamlessly that one almost believes that the play was originally written screwball-style. Particularly excellent as sharp-tongued cynical dames are Rosalind’s cousin Celia (Elgin Kelly) and Phebe the hard-hearted country girl (Laura Montes)—two broads with broad gestures, wide swings in their voices, and comically expressive faces.

The males are well-played and solid, although none of them rises to, say, the heights of Gary Cooper in Mr. Deeds Goes to Town (1936).

The only really false note is struck by Duke Senior, as the hobo leader who is the exiled brother of Duke Frederick. He often played with a yo-yo during his speeches, but the action seemed contrived rather than zany.

Hobos with yo-yos notwithstanding, most of the other elements from the 1930s fit together smoothly: the wrestler with the Brooklyn accent who would be “loathe ta hoit 'im,” the singing telegram, the Woody Guthrie music, the square dance finale, and, especially, the characters at the urban costume party dressed as Flash Gordon, Ming the Merciless, Scarlett O’Hara, the Mummy, and other 1930s movie characters.

Another play involving an exiled brother, The Tempest, is also excellent, in its own dark and disturbing way. The story begins with Prospero and his young adult daughter Miranda, who for almost two decades have been exiled on a Mediterranean island by Prospero’s usurping brother, who took over the duchy of Milan. During the years on the island, Prospero has learned magic and acquired a collection of ethereal servants, led by Ariel. He also rules over a monstrous slave named Caliban.

Prospero discovers that a ship carrying his wicked brother, as well as the wicked king of Naples (who had helped the usurpation plot) are coming nearby; Prospero uses magic to cause a shipwreck, and most of the play involves several shipwrecked parties who wander the island.

The performances and staging evoke, at various times, Heart of Darkness, Lord of the Flies, The Hulk, and Lost—works which followed The Tempest in exploring the dark-hearted monster that is part of human nature—a monster sometimes revealed more vividly in the wilderness, but always present in “civilization” too.

Caliban is the overt monster—enslaved because he once attempted to rape Miranda, after she befriended and tutored him. The Neapolitan and Milanese rulers and courtiers are better-dressed than brutish Caliban, but even more monstrous, betraying families and each other.

Almost all the characters in the play undergo a transformation. The leading exceptions are Prospero’s beautiful daughter Miranda (the charming Tara McMullen) and her beloved, handsome Prince Ferdinand, who both remain guileless and pure.

The biggest transformation is Prospero’s. A Freudian avant la lettre, he re-enacts the central trauma of his life (the usurpation of his dukedom), and this time ensures a happy ending—defeating a pair of drunken, cruel sailors whom he has entrapped in a plot to usurp his little island kingdom. After exacting some revenge and teaching a few lessons to the shipwrecked characters, Prospero abjures magic, frees the spirit Ariel (thereby liberating his own spirit), emancipates Caliban, reconciles with his brother, and prepares to return to civilization.

Having grown up without knowing any human other than her father, Miranda sees the shipwrecked men, and exclaims “Oh brave new world, that hath such people in it!” Her naïve excitement evokes laughter from the audience, but the line also reminds us of the new word that has been created by the reconciliation of Prospero and his enemies (and also by the solution of other conflicts in the subplots), when reformed men stop acting like monsters.

Yet in the brave new world created by mercy, Prospero remains a rather dour fellow. After all, character is built over the years, and, although a person can change his intentions, changing one’s disposition is takes time.

Both of The Tempest and As You Like It are performed at the beautiful outdoor Mary Rippon Theatre at the University of Colorado, with a stage flanked by evergreens, and the night sky sometimes adding commentary to the show. The Tempest benefits most from the setting, as the sparse set blends into the outdoors to create scenes of magical otherworldiness.

As You Like It, ostensibly set in a forest, keeps so much attention on the characters’ madcap physicalizations that the play would work equally well indoors. The CSF finishes its season with performances every night this week, through Saturday night.

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Celebrate Diversity with Hezbollah:

Denver blogger Joshua Sharf (View from a Heights) notes a Denver Post report of an anti-Israel rally in Denver last Saturday: "Mixed messages ranging from steadfast nonviolence to support for Hezbollah 'show the diversity' of a new organization called the Front Range Coalition for Justice and Peace in the Middle East, said Imam Ibrahim Kazerooni, a leader of interfaith efforts at St. John's Cathedral."

Sharf writes:

I hadn't realized that tolerance for, indeed applause for, Ahmedinejad's willing executioners was included in the definition of "interfaith efforts."

...A well-organized rally would have had marshals controlling the message a little bit. The quote to the paper would have been about how his "movement" had no place for the sort of hatred that Nasrallah represents, blah blah blah. But Kazerooni couldn't even bring himself to say that.

Kazerooni knows what Hezbollah and Nasrallah are. He knows perfectly well that Nasrallh, too, has said he's looking forward to the ingathering of the Jewish exiles, all the easier to kill them. He's also a professional at PR, so he knows how to stay on message when he wants to. And in this case, the message was, "we'll take all comers, even if they're experimenting with Zyklon B in their back yards."

He's not anti-war, he's just on the other side.

Kazerooni came to Colorado after fleeing persecution under Saddam Hussein, but it hard so respect his current tolerance a group that would impose its own tyranny on Lebanon.

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[David Kopel, August 7, 2006 at 3:14am] 0 Trackbacks / Possibly More Trackbacks

President Kennedy's Words on Cuba:

Speaking to the American public about the Cuban Missile Crisis on October 22, 1962, President Kennedy concluded with some words which are still relevant:

Finally, I want to say a few words to the captive people of Cuba to whom this speech is being directly carried by special radio facilities.

I speak to you as a friend, as one who knows of your deep attachment to your fatherland, as one who shares your aspirations for liberty and justice for all.

And I have watched and the American people have watched with deep sorrow how your nationalist revolution was betrayed and how your fatherland fell under foreign domination.

Now your leaders are no longer Cuban leaders inspired by Cuban ideals. They are puppets and agents of an international conspiracy which has turned Cuba against your friends and neighbors in the Americas...

But this country has no wish to cause you to suffer or to impose any system upon you. We know that your lives and land are being used as pawns by those who deny your freedom. Many times in the past the Cuban people have risen to throw out tyrants who destroyed their liberty.

And I have no doubt that most Cubans today look forward to the time when they will be truly free, free from foreign domination, free to choose their own leaders, free to select their own system, free to own their own land, free to speak and write and worship without fear or degradation.

And then shall Cuba be welcomed back to the society of free nations and to the associations of this hemisphere.

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[David Kopel, August 5, 2006 at 1:53am] 0 Trackbacks / Possibly More Trackbacks

Never Again

Israeli journalist Ben Caspit, who writes commentary for the daily newspaper Ma'ariv (and who, in early 2006, was criticized by some as an apologist for Ariel Sharon's plans to withdraw from most of the West Bank/Judea/Samaria) has penned a speech which he thinks that Israel's Prime Minister should give:

Ladies and gentlemen, leaders of the world. I, the Prime Minister of Israel, am speaking to you from Jerusalem in the face of the terrible pictures from Kfar Kana. Any human heart, wherever it is, must sicken and recoil at the sight of such pictures....Still, I am looking you straight in the eye and telling you that the State of Israel will continue its military campaign in Lebanon....

We will not hesitate, we will not apologize and we will not back off. If they continue to launch missiles into Israel from Kfar Kana, we will continue to bomb Kfar Kana. Today, tomorrow and the day after tomorrow. Here, there and everywhere. The children of Kfar Kana could now be sleeping peacefully in their homes, unmolested, had the agents of the devil not taken over their land and turned the lives of our children into hell.

Ladies and gentlemen, it’s time you understood: the Jewish state will no longer be trampled upon. We will no longer allow anyone to exploit population centers in order to bomb our citizens. No one will be able to hide anymore behind women and children in order to kill our women and children....

Today I am serving as the voice of six million bombarded Israeli citizens who serve as the voice of six million murdered Jews....In both cases, those responsible for these evil acts were, and are, barbarians devoid of all humanity, who set themselves one simple goal: to wipe the Jewish race off the face of the earth, as Adolph Hitler said, or to wipe the State of Israel off the map, as Mahmoud Ahmedinjad proclaims.

And you - just as you did not take those words seriously then, you are ignoring them again now. And that, ladies and gentlemen, leaders of the world, will not happen again....Never again will we wait for salvation that never arrives. Now we have our own air force. The Jewish people are now capable of standing up to those who seek their destruction - those people will no longer be able to hide behind women and children. They will no longer be able to evade their responsibility.

Every place from which a Katyusha is fired into the State of Israel will be a legitimate target for us to attack. This must be stated clearly and publicly, once and for all. You are welcome to judge us, to ostracize us, to boycott us and to vilify us. But to kill us? Absolutely not.

Four months ago I was elected by hundreds of thousands of citizens to the office of Prime Minister of the government of Israel, on the basis of my plan for unilaterally withdrawing from 90 percent of the areas of Judea and Samaria...

The Prime Minister who preceded me, Ariel Sharon, made a full withdrawal from the Gaza Strip...The Prime Minister who preceded him, Ehud Barak, ended the lengthy Israeli presence in Lebanon....

What did the State of Israel get in exchange for all of this?...Ehud Barak's peace initiative at Camp David let loose on us a wave of suicide bombers who smashed and blew to pieces over 1,000 citizens, men, women and children. I don't remember you being so enraged then....

We do not dance on the roofs at the sight of the bodies of our enemy's children - we express genuine sorrow and regret. That is the monstrous behavior of our enemies....

And Ariel Sharon's withdrawal from Gaza. What did it get us? A barrage of Kassem missiles fired at peaceful settlements and the kidnapping of soldiers. Then too, I don't recall you reacting with such alarm....

In a loud clear voice, looking you straight in the eye, I stand before you openly and I will not apologize. I will not capitulate. I will not whine. This is a battle for our freedom. For our humanity. For the right to lead normal lives within our recognized, legitimate borders. It is also your battle. I pray and I believe that now you will understand that. Because if you don't, you may regret it later, when it's too late.

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David Kopel, August 4, 2006 at 9:42pm] 0 Trackbacks / Possibly More Trackbacks

Who Thinks Bush is a lot like Hitler?

The organization World Can't Wait has run an advertisement urging a rally on October 5 to "mass resistance" to begin to "Drive out the Bush regime." After listing various Bush sins, the advertisement declares "People look at all this and think of Hitler – and they are right to do so. The Bush regime is setting out to radically remake society very quickly, in a fascist way, and for generations to come."

The advertisement lists the following endorsers:

James Abourezk, Aris Anagnos, Anti-Flag, Edward Asner, Russell Banks, Ed Begley Jr., Harry Belafonte, St. Clair Bourne, Gabriel Byrne, Margaret Cho, Ward Churchill, Kate Clinton, US Rep. John Conyers Jr., John Densmore, Jesse Díaz Jr., Ariel Dorfman, Tom Duane, Michael Eric Dyson, Steve Earle, Niles Eldredge, Daniel Ellsberg, Eve Ensler, Lawrence Ferlinghetti, Jane Fonda, Michael Franti, reg e. gaines, Martin Garbus, Wavy Gravy, André Gregory, Paul Haggis, Sam Hamill, Suheir Hammad, Kathleen Hanna, Stephen Hays, Merle Hoffman, Rev. Jesse L. Jackson, Mumia Abu-Jamal, Bill T. Jones, Rickie Lee Jones, Sarah Jones, Brig. Gen. (ret) Janis Karpinski, Casey Kasem, Ron Kovic, Jonathan Kozol, Jessica Lange, Lewis Lapham, Mark Leno, Rabbi Michael Lerner, George Lois, US Rep. Cynthia McKinney, Mark Crispin Miller, Tom Morello, US Rep. Major Owens, Ozomatli, Grace Paley, Harvey Pekar, Sean Penn, Jeremy Pikser, Harold Pinter, Frances Fox Piven, Sister Helen Prejean, Michael Ratner, Boots Riley, Mark Ruffalo, US Rep. Bobby Rush, Susan Sarandon, James Schamus, Richard Serra, Rev. Al Sharpton, Cindy Sheehan, Martin Sheen, Gary Soto, Nancy Spero, Gloria Steinem, Lynne Stewart, Serj Tankian, Jonathan Tasini, Sunsara Taylor, Studs Terkel, Gore Vidal, Kurt Vonnegut, Alice Walker, Naomi Wallace, Lt. Ehren Watada, US Rep. Maxine Waters, Cornel West, Saul Williams, Krzysztof Wodiczko, Ann Wright, Howard Zinn.

All I can say is that I'm disappointed with Wavy Gravy, but not surprised about most of the rest.

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David Kopel, July 29, 2006 at 1:55pm] 1 Trackbacks / Possibly More Trackbacks

How Israel and Thailand are preventing jihadi shootings:

At schools and other youth centers, they allow or require the presence of armed adults, such as teachers, as I detailed in a 2004 article for National Review Online. These policies were adopted to deal with well-organized terrorist attacks, rather than with perpetrators such as the lone Jew-hater who apparently carried out yesterday's crimes in Seattle. Lone terrorists, especially those who are mentally ill, might be less subject to rational deterrence than are organized terrorist gangs. On the other hand, lone terrorists, should they attempt to instigate an attack, would be all the more easily defeated by the guardian adults, since the perpetrator would be acting alone, and would usually not be as careful about planning as are organized terrorist gangs.

Like Eugene Volokh, I am skeptical about "hate crime" laws as a response to crimes such as the Seattle shooting. In a 2003 Issue Paper for the Independence Institute, I examined the record of Colorado's "ethnic intimidation" statute, and found the statute to have contributed almost nothing to effective criminal justice in Colorado. While calling for repeal of the ethnic intimidation statute, I argued that the penalty for hate crime hoaxes should be substantially increased, since hate crime hoaxes (like hate crimes themselves) cause broad fear in the community. PDF version. HTML version.

On another subject, my Rocky Mountain News media column notes how the Denver Post erred in describing Republican gubernatorial candidate Bob Beauprez's stance on gun control. And I chastise the Denver Newspaper Agency for running as bait-and-switch web ad promising "You have been chosen to receive a FREE 42-inch Samsung or Panasonic HDTV."

Finally, those of you who read Spanish might enjoy Política de Oficiales: Los recientes escándalos del departamento de policía son el resultado de la creciente intervención del estado federal y de las prácticas de empleo racistas. It's a Spanish translation of an article that Mike Krause and I wrote for American Outlook in 2001; examining the Rampart scandal in Los Angeles, and similar problems in other big city police departments, we suggest that the problems of corruption and illegal violence involving the police are aggravated by excessive federal involvement, race-based hiring, and the drug war.

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U.S. House votes to ban gun confiscation in disasters:

On Tuesday, the House of Representatives voted 322 to 99 to prohibit federal employees, as well as state and local police which receive federal funding (that is, most of them) from confiscating lawfully-owned firearms. "The Disaster Recovery Personal Protection Act" (H.R. 5013) was sponsored by Rep. Bobby Jindal (R-Louisiana), in response to the illegal gun confiscation perpertrated by two Louisiana parishes after Hurricane Katrina. (For the VC's discussion of the issue last fall, and for other documents related to the contoversy, start here and follow the links.)

A similar measure, sponsored by Louisiana Senator David Vitter (R), as a rider to the homeland security appropriations bill, H.R. 5441, passed the Senate 84-16 last week. Section 570 of that bill simply states "None of the funds appropriated by this Act shall be used for the seizure of a firearm based on the existence of a declaration or state of emergency."

The Jindal bill prohibits federal and state/local police from confiscating (at any time, not just after a natural disaster) firearms which are legally owned under state and federal law. The bill likewise forbids police from requiring the registration of firearms, or prohibiting the possession of firearms in particular places, to the extent that registration or possession bans are not authorized by federal or state law. Finally, the bill forbids federal officers from banning on the otherwise-lawful carrying of firearms by persons engaged in disaster relief under federal supervision. The bill creates a right to sue for persons aggrieved by the violation of the law, and provides for the award of attorney's fee to victorious plaintiffs.

The bill's findings state:

(1) The Second Amendment to the Constitution states, `A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed,' and Congress has repeatedly recognized this language as protecting an individual right.

(4) Many of these citizens [those affected by Katrina] lawfully kept firearms for the safety of themselves, their loved ones, their businesses, and their property, as guaranteed by the Second Amendment, and used their firearms, individually or in concert with their neighbors, for protection against crime.

(5) In the wake of Hurricane Katrina, certain agencies confiscated the firearms of these citizens, in contravention of the Second Amendment, depriving these citizens of the right to keep and bear arms and rendering them helpless against criminal activity.

(6) These confiscations were carried out at gunpoint, by nonconsensual entries into private homes, by traffic checkpoints, by stoppage of boats, and otherwise by force.

(8) The means by which the confiscations were carried out, which included intrusion into the home, temporary detention of persons, and seizures of property, constituted unreasonable searches and seizures and deprived these citizens of liberty and property without due process of law in violation of fundamental rights under the Constitution.

(9) Many citizens who took temporary refuge in emergency housing were prohibited from storing firearms on the premises, and were thus treated as second-class citizens who had forfeited their constitutional right to keep and bear arms.

(11) These confiscations and prohibitions, and the means by which they were carried out, deprived the citizens of Louisiana not only of their right to keep and bear arms, but also of their rights to personal security, personal liberty, and private property, all in violation of the Constitution and laws of the United States.

If the Jindal bill becomes law in its current form, then the bill would be the fifth time in which a Congressional law has formally recognized the Second Amendment as an individual right. These laws are the Freedmen's Bureau Act of 1866, the 1941 Property Requisition Act, the Firearms Owners' Protection Act of 1986, and the 2005 Protection of Lawful Commerce in Firearms Act (S. 397). See Stephen Halbrook's Tennessee Law Review article for discussion of the first three.

Interestingly, the Jindal bill refers to a plaintiff's "rights, privileges, or immunities", while S. 397 stated Congress's intent to protect the "rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution."

Under the Supreme Court's narrowest readings of the Privileges and Immunities clause of the 14th Amendment, nothing in the Bill of Rights is a Privilege and Immunity. Arguably, the Congressional bills could be said to be related to the few national rights which have been held to a P&I of national citizenship. For example, gun prohibition (enforced through outright confiscation, or through lawsuit-based destruction of the firearms business) might be said to impose an impermissible burden on the right of interstate travel. (The 1986 FOPA contains preemption language protecting interstate travelers with unloaded guns which are not "directly accessible from the passenger compartment." The preemption applies only if the traveler may lawfully possess the gun in both his place of origin and his destination. Section III.D.2 of David Hardy's huge article on FOPA supplies the details.)

On the other hand, the repeated Privileges & Immunities language might be considered a signal to the Court that its narrow P&I decisions were mistaken, and ought to be reconsidered, and that the Second Amendment is among the Privileges & Immunities guaranteed by the Fourteenth Amendment. Of course neither the Congressional hints about P&I, nor the repeated explicit statements about the Second Amendment are binding on the courts. On the other hand, the Court is often reluctant to diverge too far from public sentiment, and the huge, bipartisan majority in favor of the Jindal bill (especially if it becomes law) as well as the substantial bipartisan support for the Protection of Lawful Commerce in Firearms Act might well be regarded by Supreme Court Justices who believe in "a living Constitution" as proof that the Second Amendment is alive and well, and not obsolete or irrelevant, or confined only to the National Guard, as some law review authors have claimed.

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African Genocide and Gun Bans:

That's the topic of my new article in America's 1st Freedom (one of the magazines for NRA members). Using information gathered by the International Crisis Group and Sudan Update, the article details the Khartoum government's confiscation of guns from the Darfuris, and arming of the Arab janjaweed. The article also reports on the four Darfuri girls from a refugee camp who have been arrested for murder because they stabbed a soldier who was trying to rape them. Finally, the article notes how successfully the United Nations is promoting Sudan-style gun control all over sub-Saharan Africa.

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[David Kopel, July 21, 2006 at 7:12pm] 12 Trackbacks / Possibly More Trackbacks

United Nations an Accomplice in Hezbollah Kidnapping:

After Hezbollah's kidnapping of a pair of Israeli soldiers spurred an Israeli counter-attack, many critics of Israel actions have suggested that the United Nations can serve as a buffer between Israel and Hezbollah. To the contrary, the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers.

The United Nations Interim Force in Lebanon (UNIFIL) has been deployed since 1978, not long after Israel first entered Lebanon in pursuit of PLO terrorists. UNIFIL was created pursuant to Security Council Resolution 425, for the purpose of "confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area." Quite obviously UNFIL has utterly failed to achieve the Security Council's objectives, either before or after Israel's 2000 complete withdrawal from Lebanon. One reason is that UNIFIL does not interdict Hezbollah attacks on Israel. Instead, UNIFIL allows Hezbollah to set up positions next to UNFIL units, in effect using UNIFIL as human shields against Israeli counterstrikes. (Aluf Benn, Israel accuses UN of collaborating with Hezbollah," Haaretz, Sept. 11, 2005.)

UNIFIL's most notorious collaboration with terrorists involved the kidnapping and murder of three Israeli soldiers, and the subsequent cover-up.

On October 7, 2000, Hezbollah terrorists entered Israel, attacked three Israeli soldiers on Mount Dov, and abducted them Lebanon. The kidnapping was witnessed by several dozen UNIFIL soldiers who stood idle. One of the soldier witnesses described the kidnapping: the terrorists set of an explosive which stunned the Israeli soldiers. Clad in UN uniforms, the terrorists called out, "Come, come, we’ll help you."

The Israeli soldiers approached the men in UN uniforms. Then, a Hezbollah bomb detonated—-apparently prematurely. It wounded the disguised Hezbollah commander, and three Israeli soldiers.

Two other terrorists in U.N. uniforms dragged their Hezbollah commander and the three wounded soldiers into a getaway car.

According an Indian solider in UNIFIL who witnessed the kidnapping, "By this stage, there was a big commotion and dozens of UN soldiers from the Indian brigade came around." The witness stated that the brigade knew that the kidnappers in UN uniform were Hezbollah. One soldiers said that the brigade should arrest the Hezbollah, but the brigade did nothing.

According to the Indian soldier, the UNFIL brigade in the area "could have prevented the kidnapping."

"I’m very sorry about what happened, because we saw what happened," he said. Hezbollah "were wearing our uniforms and it was too bad we didn’t stop them."

It appears that at least four of the UNIFIL "peacekeepers," all from India, has received bribes from Hezbollah in order to assist the kidnapping by helping them get to the kidnapping spot and find the Israeli soldiers. Some of the bribery involved alcohol and Lebanese women.

The Indian brigade later had a bitter internal argument, as some members complained that the brigade had betrayed its peacekeeping mandate. An Indian government investigation sternly criticized the brigade's conduct.

There is evidence of far greater payments by Hezbollah to the UNIFIL Indian brigade, including hundreds of thousands of dollars for assistance in the kidnapping and cover-up.

The UN cover-up began almost immediately.

Lebanon's The Daily Star reported the story told by a former officer of the Observer Group Lebanon (OGL), which is part of the UN Truce Supervision Organization (UNTSO). ("UN 'destroyed' evidence after abduction of 3 Israeli troops," The Daily Star, July 20, 2001.)

A few hours after the kidnapping, UNTSO learned that two abandoned cars had been discovered. One was a white Nissan Pathfinder with fake UN insignia; it had hit an embankment because it was being driven so fast that the driver missed a turn. The other was a Range Rover; it was missing a tire rim, and was still running when it was discovered.

Rather than using the very-recently-abandoned vehicles as clues to rescue the kidnap victims, the UN initiated a cover-up. The next morning, eighteen hours after the kidnapping, a team of OGL and the Indian UNIFIL began removing the contents of the cars.

The Range Rover was soaked with blood. Among the contents of the vehicles may have been a cell phone belonging to the terrorists. The UNTSO officer confirmed that the cars contained "extremely sensitive" items which included "current and relevant information that could have been easily linked to the incident."

A UNIFIL peacekeeper videotaped the removal of the contents, and attempted to tow one of the cars. According to a much-later U.N. report, there were fifty items taken from the car, seven of them blood-stained. (Report of the fact-finding investigation relating to the abduction of three Israeli soldiers on 7 October 2000 and subsequent relevant events, Aug. 2, 2001.)

The end of the UNIFIL videotape featured armed Lebanese men confronting the UN forces, and taking the cars away from the UN. The UN personnel did not resist, because, they later claimed, the cars did not belong to the UN anyway.

The UNTSO officer told The Daily Star that the UN ordered its personnel to destroy all photographs and written reports about the incident.

The U.N. did not provide the Israelis with the automobile contents, or the videotape, both of which might have helped the Israelis rescue the kidnap victims. Instead, the seized contents of the cars were taken to a town in Lebanon, stored in a safe, and some were eventually returned to Hezbollah.

Israel found out about the videotape, and demanded that the UN let Israeli investigators see it. Kofi Annan and his Special Envoy denied that any videotape existed. It is not clear whether Annan was lying, or whether he was misled.

Nine months after the kidnapping, July 6, 2001, the UN admitted that is had the videotape. Annan ordered an internal UN Report, which was led by UN undersecretary-General Joseph Connor. (Connor was later implicated in the Oil-for-Food scam.) The report revealed that the UN had two additional videotapes—one of which contained still photographs from the kidnapping itself. The UN investigation declared that there was no evidence that the UNIFIL forces had been bribed, or that the UN had deliberately misled anyone.

Even after admitting the existence of the first videotape, Annan refused to allow Israel to view it. He claimed that letting Israel see evidence about the kidnapping would undermine the UN’s neutrality. Thus, Annan insisted on neutrality between innocent victims and terrorists who had used fake UN insignia and who had taken vehicles from UN staff a gunpoint.

The United States House of Representatives, on July 30, 2001, passed by a vote of 411-4 a resolution urging the UN to allow Israel to see the videotape. Annan relented, but only under the condition that the tape be edited so as to hide the faces of the Hezbollah perpetrators. He also agreed to give the Israelis some, but not all, of the items which the UN had seized from the getaway cars.

On January 29, 2004, the bodies of the murdered Israelis were returned to Israel by Hezbollah, as part of a prisoner exchange.

UPDATE: In response to one of the commenters, I've added the following analysis on two questions: 1. By what standard can the UN be considered an "accomplice" in the Hezbollah kidnapping? 2. Is anti-semitism the best explanation of UN behavior?

1. Regarding UN complicity in kidnapping, one can analogize from the rules that are used to decide whether a corporation is criminally culpable for the acts of its employees, or whether a government agency is liable under section 1983 for the acts of its employees. At the lowest level--the four bribed Indians--the trier of facts looks at the entity's efforts to prevent or punish the employee conduct in question, and whether the entity creates a culture in which the conduct is encouraged or tacitly tolerated.

For misconduct by higher-ranking employees, prosecutors and fact-finders tend to be more likely to conclude that misconduct is attributable to the entity. If you believe the UNTSO official who spoke to The Daily Star (not exactly a reflexively pro-Israel newspaper), or if you believe that reports of a vast bribery scheme are true, then you might well find culpability on the part of the UN.

But I think that my calling the UN an "accomplice" is supportable purely on the undisputed public facts about the UN's concealment and suppression of evidence — with some of the suppression being conducted at the direct order of the UN's chief executive. I believe the undisputed facts are sufficient to show, at the least, that the UN was an accessory-after-the-fact to the kidnappings.

Moreover, the activities of the UN's top staff in New York City, and of high-ranking UN officials in Lebanon, are also relevant evidence for whether there is UN corporate culture of tolerance for terrorism/kidnapping, which is relevant evidence for whether the misconduct of the Indian brigade can be attributed to the UN.

As some commenters have pointed out, there is a very long record of the UN being extremely lax towards crimes committed by its peacekeepers in many other places--for example, the rapes of women and girls in former Yugoslavia, Cambodia, West Africa, and the Congo. The global record suggests, again, a corporate culture of indifference (despite official statements to the contrary) towards employee on-the-job involvement in violent crime; the evidence of a global culture of indifference is more evidence which a fact-finder could use in concluding that crimes of the Indian brigade were attributable to the UN.

2. Anti-semitism. I don't think that anti-semitism is the root of the UN's problem with Israel. It's true, as some commentators have pointed out, that the UN is functionally anti-semitic; that is, the UN constantly condemns Israel far more often and more vehemently than it condemns other countries which (even if you believe the worst about Israel) violate human rights much more severely than Israel does. The Eye on the UN website provides copious documentation of the UN's functional anti-semitism.

Nevertheless, I think the UN's pervasive anti-Israelism, although anti-Semitic in practice, is not primarily motivated by hatred of Jews.

Hitler was genuinely committed to anti-Semitism. He harmed his own military interests by giving rail line priority to trains which were headed for the death camps, putting those trains ahead of military transport trains. Similarly, Hitler would have produced resources with which to fight the war if he had used Jews as slave labor (as many were used before extermination), rather than killing them en masse. Who else would harm their own self-interest in order to kill Jews. The answers include "the government of Iran, Hezbollah, Hamas, and the PLO." But only one of these has a UN delegation, and the UN had turned vehemently against Israel long before Iran's government was taken over by Islamonazis.

Way back in the 1950s, the Arab bloc at the UN had succeeded in perverting UNRWA so that UNRWA would perpetuate rather than solve the Palestinian refugee problem. The Arab dictators of the day may have personally despised Jews, but I think that the dictators were acting out of self-interest, not prejudice. They recognized that keeping the Arab-Israeli conflict festering was a good way to distract and divert the anger of their own nations' populations. In retrospect, we know that the strategy was only partially successful, since the fomentation of anti-Israel Jew hatred sometimes aroused local forces which the dictatorships were unable to control.

Arab government-incited anti-semitism had the advantage of building on historical prejudices against Jews. (It's true that, in the past, Arab Moslem regimes sometimes treated Jews better than did European Christians, but there was also a long record of atrocious abuse of Jews in the Arab world on which the post-WWII Arab dictatorships could build.)

But suppose that modern Israel had never been created, and that, after WWII, some other state for a stateless people had been born. Maybe sympathy for the Gypsies, who were also the victims of Nazi genocide, might have led to the creation of Gypsistan (or Romastan, according to the modern usage) in a part of Egypt. (The word "gypsy" comes from the "Egypt", based on the belief that the group originated there.) Or some other persecuted group might have established a homeland in the wastelands of Libya. In any case, I think that the establishment of a non-Arab state would likely have led to military confrontation, and if the attempt to exterminate that state by force had failed, then the Arab dictators would have found political advantage in fomenting hatred of that non-Arab state.

Although UNRWA was captured very shortly after it was born, the broader UN assault on Israel didn't get going until the 1960s; the assault peaked in the 1970s, and later receded slightly from its 1970s apex. The anti-Israel assault of the 1970s was merely one element in a successful Soviet strategy of aligning the new UN members, most of them former colonies of Europe, and most of them dictatorships, into an anti-Western bloc. Israel, having the misfortune of being located in the middle of a sea of dictatorships, was a natural target of this UN super-majority; but the same would have been true if Romastan were a pro-western democracy.

Today, the Islamic bloc at the UN continues to find local political advantage in anti-Israelism (as it would with anti-Romastanism), while the rest of the Third World finds it advantageous to go along. I don't think that the dictatorship of China, for example, cares one way or the other about Jews or Israel; but the Chinese dictatorship correctly discerns that voting with the Islamic bloc against Israel is a cost-free way to curry favor with Islamic states, and win their support on issues relevant to China.

Regarding Kofi Annan, and most of the rest of the UN's leading executives, I would say that, functionally, they are vicious anti-Semites, but that, in their hearts, they are not particularly prejudiced against Jews per se. Rather, their actions are explainable under the principles of organizational behavior. Annan is a career UN employee (the first one to become Secretary-General), and he has risen through the organization by shrewdly placating whoever needs to be placated. His anti-Israel actions are simply the result of his astute calculation of the balance of forces at the UN. If he could gain more power at the United Nations by denouncing Fiji or by defending Israel, he would do so.

So there is no anti-semitic conspiracy at the UN, in the sense of a conspiracy directed by people who are deeply motivated by hatred of Jews. Rather, the UN's criminal complicity in the kidnapping of Israelis, like the rest of the UN's anti-Israelism, is explainable as the logical result of a wide variety of UN actors behaving according to their self-interest.

UPDATE ON ACCESSORY-AFTER-THE-FACT SPECIFIC INTENT

Orin, in a post above, argues that, even though high-ranking United Nations officials destroyed and withheld evidence about the Hezbollah crime (for which the accomplices included four rank and file UN peacekeepers), the UN officials would not be guilty as accessories-after-the-fact, because they did not have the specific intent that is necessary for such liability.

If there actually were a prosecution, I don't know whether the law which would be applied would be Lebanese law, Israeli law, International Criminal Court law (if similar acts were perpetrated today), US law for the portion of the cover-up in the US (assuming the UN employees waived or lost their diplomatic immunity), or some other law. But for simplicity, let us look at a very straightforward example of how American juries are instructed to determine accessory guilt.

Here the Sixth Circuit Jury Instructions:

4.02 ACCESSORY AFTER THE FACT

(1) _______ is not charged with actually committing the crime of _______. Instead, he is charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime. A person who does this is called an accessory after the fact.

(2) For you to find _______ guilty of being an accessory after the fact, the government must prove each and every one of the following elements beyond a reasonable doubt:

(A) First, that the defendant knew someone else had already committed the crime of _______.

(B) Second, that the defendant then helped that person try to avoid being arrested, prosecuted or punished.

(C) And third, that the defendant did so with the intent to help that person avoid being arrested, prosecuted or punished.

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

It would appear relatively easy for the prosecutor to prove elements (A) and (B) of the offense. As for (C), let us presume that a UN official testifies honestly during his trial (perhaps in exchange for leniency):

Q: Why did you destroy and conceal the evidence?

A: To avoid embarassment to the United Nations.

Q: Did you believe that it would be embarassing to the United Nations if the public found out that four UN peacekeepers were accomplices in the crime?

A: Yes.

Q: Did you worry that if the Hezbollah perpetrators were caught, they might reveal, or the prosecutors might more easily discover, that UN peacekeepers were accomplices?

A: Yes.

Q: Did you destroy and conceal evidence with the intent of helping the Hezbollah perpetrators and the UN perpetrators avoid being arrested, prosecuted or punished?

A: Yes.

Q: Why?

A: Because achieving my intent of helping the perpetrators avoid being arrested, prosecuted or punished was indispensable to my ultimate intent of avoiding embarrassment to the United Nations. Isn't that obvious? I mean, once I formed my intent of avoiding embarrassments to the United Nations, I necessarily intended to accomplish all the steps which were requisite to my ultimate intent. I certainly had the common sense to know that one of the steps which I must take would be helping the perpetrators avoid being arrested, prosecuted or punished.

Related Posts (on one page):

Accomplices, Accessories, Mens Rea, and More:
Response to "United Nations an Accomplice in Hezbollah Kidnapping":
United Nations an Accomplice in Hezbollah Kidnapping:

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David Kopel, July 15, 2006 at 12:34pm] 1 Trackbacks / Possibly More Trackbacks

Missing Pieces in Immigration Stories

In my latest media column, I point out how the Denver Post falsely portrayed Georgia State Senator Sam Zamarripa, who is that state's leading advocate for illegal aliens. Also, how the Post missed the research showing the complexity of the issue of illegal aliens and Medicaid. Plus a suggestion that the Rocky Mountain News drop the mean-spirited cartoons of Dan Asmussen of the S.F. Chronicle.

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[David Kopel, July 9, 2006 at 5:33pm] 0 Trackbacks / Possibly More Trackbacks

Triple Bleg

I would be grateful for information on any of these three topics:

1. If a person likes Green Day's sound, but not their politics, what other bands might the person enjoy?

2. What do you recommend as an entry-level shotgun for a pre-teen? It's really important that the stock be short, to accommodate short arms. If the shotgun will only be used on clay birds, and never for hunting live animals, is there any disadvantage to 28 gauge or .410?

3. I am looking for a web-based traffic meter for my website. I already run SiteMeter, but that of course covers only the home page. The website includes hundreds of different htm and pdf files, and I would prefer not to have to install new code on every single page. The solution cannot involve installing software on the website server. I realize that there is no free program which will do the the trick.

Thanks!

UPDATE: Thanks to the many excellent and thoughtful commenters! Here's what I did:

1. For Green Day substitutes, I'm starting with MxPx and Mr. T Experience. I will be checking out the many other bands highlighted by the commenters. (BTW, the music isn't for personal use; it's for someone else. I'm not punk.)

2. For the gun, I got the New England Firearms single-shot youth shotgun. It was the only gun I found that really fit well and was comfortable for the pre-teen to hold. I really like the fact that it's a break-open, that it's single shot, and that the hammer has to be manually cocked before a shot can be fired. Custom stock-fitting makes a lot of sense, but I couldn't bear to spend the money. (The NEF is a real bargain; only $107 at Cabelas.) Recoil would certainly be reduced with a gas-operated semi-auto, and I'm sure that's a good choice for some folks, but I agreed with commenters who suggested that a semi-auto might not be the right starter shotgun for my situation. At Cabelas I discovered that Remington sells a recoil-absorbing gel pad which can be inserted in an interior shoulder pocket in some shooting vests. We tried it out today, and its works superbly.

3. I'm adding the sitemeter code my Dynamic Web Templates. I will also explore getting ahold of the server logs.

Thanks again for all the great advice!

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[David Kopel, July 7, 2006 at 7:16pm] 5 Trackbacks / Possibly More Trackbacks

U.N. Conference Ending, Freedom Winning!!

As of 6 p.m. eastern time, the word from the United Nations small arms conference is that the conference is concluding with NO final document, and NO plans for any follow-up conference. It was the latter issue that prevented an agreement about a final document. The officials who had been charged by the conference chair with drafting the conference document presented a final take-it-or-leave it document a little while ago; that draft document eliminated various provisions that the U.S. delegation had found objectionable, but also declared that there would be at least two more conferences. The U.S. delegation refused to assent, and so the conference ended with no consensus agreement, and no plans for future conferences. The back-up plan of the international gun prohibition movement, and their many allies within the U.N. and national U.N. delegations, was to give up on significant progress in 2006, but to keep the game going with future conferences, when a more pliant U.S. administration might welcome an international gun control program.

If a few hundred votes had changed in Florida in 2000, or if 60,000 votes had changed in Ohio in 2004, the results of the 2001 and 2006 U.N. gun control conferences would have been entirely different. There would now be a legally binding international treaty creating an international legal norm against civilian gun ownership, a prohibition on the transfer of firearms to "non-state actors" (such as groups resisting tyrants), and a new newspeak international human rights standard requiring restrictive licensing of gun owners. With a Presidential signature on such a treaty (even if the treaty were never brought to the Senate floor for ratification), the principles of the anti-gun treaty would be eroding the Second Amendment, through Executive Orders, and through the inclination of some courts to use unratified treaties as guidance in interpreting the U.S. Constitution.

At the domestic level, the Bush administration has been close to neutral on the gun issue — doing very little to promote or oppose gun control in Congress. One rare exception was that the Ashcroft Department of Justice returned to the historic (pre-LBJ) DOJ position that the Second Amendment guarantees an individual right. And of course President Bush has signed all the pro-Second Amendment legislation which Congress has sent him, most importantly the Protection of Lawful Commerce in Firearms Act.

At the United Nations, however, the Bush administration has twice rescued our right to keep and bear arms from destruction.

There are plenty of issues on which pro-Constitution Americans can legitimately complain that the Bush administration has continued or worsened bad policies from previous administrations — such as federal interference in education, erosion of the Fourth Amendment, and allowing the Bureau of Alcohol, Tobacco, Firearms and Explosives to ignore statutory controls on its behavior. But in regards to the United Nations assault on the Second Amendment, the Bush administration, including John Bolton (in 2001 as Undersecretary of State, and in 2006 as U.N. Ambassador) has performed magnificently. The gun rights activists whose hard work in 2000 and 2004 was the sine qua non of Bush's narrow electoral victories can take satisfaction that their work has, literally, saved the Second Amendment.

Today's victory is extremely important, but it should not be mistaken for a final victory in the international arena. The international gun prohibition lobbies are already looking towards other international fora where they can advance their goals, including their ultimate prize--a binding treaty requiring severe restriction of citizen gun possession. The various U.N. departments which have been providing funding and propaganda for gun prohibition and confiscation will almost certainly continue to do so.

For now, everyone who cares about the right to arms has much to celebrate.

Two of the most important, but less-known heroes of today's victory are Dr. Paul Gallant and Dr. Joanne Eisen, Senior Fellows at the Independence Institute. They have worked relentlessly to give a voice to the victims around the world for whom gun confiscation really was the crucial step to the destruction of all their other rights, or the destruction of life itself — in places such as Bougainville, Uganda, Kenya, Bosnia, and Zimbabwe. Today, the world is a better, freer place because of Paul and Joanne.

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More International Gun News from the Independence Institute:

1. The latest bilingual issue of Les actualités aux armes (French gun news) is now available on the web. The issue presents links to articles in French about various gun issues, along with short English-language summaries of the articles.

2. In a new podcast from iVoices.org, I discuss the international gun prohibition movement, the current United Nations conference, and my recent paper on human rights violations in the disarmament campaigns in Kenya and Uganda.

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[David Kopel, July 1, 2006 at 12:33pm] 0 Trackbacks / Possibly More Trackbacks

Epic Battle for Press Freedom

In my latest Rocky Mountain News column, I detail the 1905 clash between the Colorado Supreme Court and Democratic Senator Thomas Patterson, the publisher of the Rocky Mountain News. Patterson was convicted of criminal contempt of court after he published a series of scathing editorials and cartoons accusing the court of corruption, after the court invalidated an election in Denver.

Let me add a few observations which might be of particular interest to law-oriented readers, and which couldn't fit in the 800 word limit of the printed column.

1. The underlying case involved a clash between Denver's newly-created constitutional home rule powers (Amendment 20 of the state constitution) and the rest of the constitution; specifically, did Amendment 20 give Denver the power to schedule spring elections for certain municipal offices. The court majority said that, for county officers whose existence is contemplated in the state constitution, the election must be in the November, when all state-related elections must take place. Unlike Patterson, I think that there were good legal arguments on both sides of the question.

2. The Supreme Court majority opinion in the contempt case (84 P. 912) is difficult reading, especially because the author liked to write paragraphs over a page long. Most of the opinion consists of the offending newspaper articles, plus Patterson's averments. The legal analysis does not come until the very end.

3. The dissenting opinion is beautifully-written and inspiring.

4. The Holmes opinion for the U.S. Supreme Court (205 U.S. 454) is of course well-written, but it tersely avoids the central issue. As Holmes points out, there could not possibly be a blanket rule that truth is a defense in a criminal contempt case. For example, a lawyer might disclose some information which was truthful, but which was subject to a confidentiality order. But the question in Patterson was truthful information about judicial misconduct. (Or more precisely, information which Patterson sincerely believed to be truthful.) Harlan and Brewer dissented.

5. In the 1918 case of Toledo News v. U.S., the U.S. Supreme Court upheld the authority of a federal court to use criminal contempt to punish controversial speech. Holmes dissented, and Brandeis joined the dissent.

6. In the 1941 case Nye v. U.S., a 6-3 majority of the Supreme Court, led by William Douglas, reversed the Toledo decision. William E. Doyle, a Colorado lawyer who would later serve on the Colorado Supreme Court and as a federal district judge, wrote that the Court had finally recognized that the First Amendment must prevail over a court's contempt power, and so "Thomas Patterson's beliefs have received recognition from the highest court in the land." Doyle, "Patterson Vindicated," 18 Dicta (no. 7, July 1941): 169-72.

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[David Kopel, June 30, 2006 at 6:36pm] 7 Trackbacks / Possibly More Trackbacks

"Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa"

That's the subject of a new Issue Backgrounder just published by the Independence Institute, co-authored by Paul Gallant, Joanne Eisen, and me. The monograph details how U.N.-backed gun confiscation programs in Kenya and Uganda have led to murder, torture, and arson, and have turned tens of thousands of pastoral tribespeople into starving refugees. The paper is available in PDF and in HTML.

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[David Kopel, June 26, 2006 at 7:07pm] 0 Trackbacks / Possibly More Trackbacks

Gun Control in French-speaking Africa. Le contrôle des armes en Afrique francophone

A new report from the Independence Institute reports on gun control developments in Rwanda, Burundi, Ivory Coast, D.R. Congo, and ECOWAS in the last several weeks. The report is in both English and French. En francais et anglais.

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David Kopel, June 19, 2006 at 8:50pm] 0 Trackbacks / Possibly More Trackbacks

The Case of Marilyn Musgrave and the Dog Feces:

My latest media column for the Rocky Mountain News looks at coverage of the "activist" who put dog feces in the office mail slot of Rep. Marilyn Musgrave. Plus, News columnist Paul Campos misreads InstaPundit, Diane Carman falls for General Motors trolley car hoax, and The Nation wrongly charges the Colorado Rockies baseball team with racism.

Technology enabling: For folks who would like a RSS feed of my website, here's the URL: http://www.davekopel.org/feed.xml. I'm brand new to RSS, so suggestions for improvement are welcome. For a more retro technology, here's the link to the PDA-enabled version of my home page: http://www.davekopel.org/PDA.htm.

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[David Kopel, June 13, 2006 at 6:27pm] 0 Trackbacks / Possibly More Trackbacks

Celebrate diversity:

For those of you who like to read in foreign languages, or have friends who do, here are some recent translations of my work in various languages. French: Le Contrôle d’Hitler. Les leçons de l’histoire Nazie. (Nazi gun controls). Italian: La liberta, l'esercito e la legge (Waco and law enforcement militarization). Polish: 5 new articles, on handgun bans, Michael Moore, Microsoft antitrust, national ID cards, and AIDS drugs in Africa.

The website has additional foreign language resources, including many more articles in French, Italian, and Spanish, as well as articles in German, Swedish, Danish, Dutch, Hungarian, Czech, Portuguese, and Russian.

Volunteer translators are sought for any and all languages; translators must be living, but the translated language need not be; I would be eager to receive the assistance of translators skilled in Latin, Klingon, ancient Greek, or the many Elvish tongues. If you'd like a chance to practice your Quenya or German skills, just send me an e-mail at the e-mail link on the lower-left corner of my home page.

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[David Kopel, June 12, 2006 at 11:35pm] 2 Trackbacks / Possibly More Trackbacks

"Guns and Violence: The English Experience"

That's the title of Joyce Malcolm's excellent book on the history of gun control in Great Britain. Paul Gallant, Joanne Eisen, and I review it for a forthcoming symposium issue of George Mason's Journal of Law, Economics & Policy. The review is available in PDF and HTML.

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Podcast on Colorado firearms preemption case:

On Monday, the Colorado Supreme Court announced that it was divided 3-3 on the appeal of a case involving Denver's challenge to the Colorado state law preempting some of Denver's anti-gun laws. As a result, the decision of the Denver District Judge stands: Denver may retain some of the gun laws (the "assault weapons" ban, the "Saturday Night Special ban," and the near-prohibition on the open carrying of firearms) which had been preempted by state law. The tie vote existed because after the retirement of Justice Rebecca Love Kourlis, the court vacancy was filled by Allison Eid. As Solicitor General for Colorado, Eid had argued the case on behalf of Colorado (and against the City of Denver) during oral argument in December, so Justice Eid recused herself from the decision of the case.

In a new podcast on iVoices.org, I explain the decision, and its ramifications. An Independence Institute Issue Backgrounder I wrote in 1999 explains the need for a Colorado preemption law. A 2003 Backgrounder details the limited preemption law (much less sweeping than similar laws in the overwhelming majority of states) which Colorado was about to enact. An Issue Paper from 1993 describes Denver's very repressive laws regarding juveniles and guns. (The preemption of some of the Denver laws, such as the ban on juveniles even touching guns under adult supervision, was upheld by the district court; one item raised in the Issue Paper--the overly broad definition of "weapon" was fixed at the behest of City Councilman Tim Sandos before the ordinance was enacted.) An op-ed by Donald DeKieffer illustrates the absurdity of Denver's juvenile laws.

[David Kopel, June 6, 2006 at 1:26pm] 0 Trackbacks / Possibly More Trackbacks

D-Day was almost a German holiday:

During World War II, the importance of an armed citizenry for defense against foreign tyranny was once again confirmed, as Dan Gifford and I suggested in a 1994 column for the D-Day anniversary. In another column, "Why D-Day Mattered," I examine the various hypotheticals about D-Day, such as the consequences of a defeat of the invasion, or of an invasion in 1943.

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[David Kopel, June 3, 2006 at 12:28pm] 4 Trackbacks / Possibly More Trackbacks

Media Miscoverage of Global Climate Change:

That's the topic of my latest media analysis column for the Rocky Mountain News. Plus a short item on the Denver papers failing to report on Governor Bill Owens' support for illegal aliens.

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David Kopel, May 17, 2006 at 3:31pm] 0 Trackbacks / Possibly More Trackbacks

Wisconsin Court Upholds Ban on Gun Carrying in Cars

The Wisconsin Supreme Court has announced its 4-3 decision in Wisconsin v. Fischer. Previously, the Court had held that Wisconsin's complete prohibition on concealed handgun carry could not constitutionally be applied to carrying in one's home or place of business. However, the Court also ruled that Wisconsin's constitutional right to arms did not forbid the prohibition of concealed carry in an automobile. Today's decision examined the case of a tavern owner who carried large sums of cash in his automobile after closing the tavern late at night in dangerous neighborhood. The majority of the court held that automobile carry was constitutionally protected only in "extraordinary" circumstances, which the majority said were not present in the instant case.

Three dissenters would have ruled that the concealed carry prohibition could not constitutionally be applied to the instant case. One of the three wrote a dissenting opinion in which he argued that Wisconsin's total ban on concealed carry should be held facially unconstitutional, in light of the right to arms which Wisconsin voters overwhelmingly added to their state constitution in 1998. The dissent briefly cited an Albany Law Review article I wrote about the previous Wisconsin cases. This is my 8th state supreme court citation, for those of you who are counting.

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Star Spangled Banner Lyrics

In light of the current controversy over the revision of The Star Spangled Banner into an anthem for illegal aliens, I thought it would be useful for readers to see more lyrics to the song. First of all, there are verses 2 through 4 to the official national anthem, all of which come directly from Francis Scott Key's 1814 poem The Defense of Fort McHenry. For a nation at war with totalitarians who are vastly more wicked than were our British opponents of 1814, the lyrics seem especially apt:

On the shore, dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, now conceals, now discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines on the stream:
'Tis the star-spangled banner! O long may it wave
O'er the land of the free and the home of the brave.
And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has wiped out their foul footstep's pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation!
Blest with victory and peace, may the heaven-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner forever shall wave
O'er the land of the free and the home of the brave!

Later, the free people of Texas took the same tune to which The Star Spangled Banner had been set (more on that below), and created The Texan War Cry, celebrating the victory of the free Texans in their war of independence against the standing army of Santa Ana's tyranny:

Oh Texans rouse hill and dale with your cry.
No longer delay, for the bold foe advances.
The banners of Mexico tauntingly fly,
And the valleys are lit with the gleam of their lances.
With justice our shield, rush forth to the field.
And stand with your posts, till our foes fly or yield.
For the bright star of Texas shall never grow dim,
While her soil boasts a son to raise rifle or limb.
Rush forth to the lines, these hirelings to meet.
Our lives and our homes, we will yield unto no man.
But death on our free soil we'll willingly meet,
Ere our free Temple soiled, by the feet of the foe men.
Grasp rifle and blade with hearts undismayed,
And swear by the Temple brave Houston has made,
That the bright star of Texas shall never be dim
While her soil boasts a son to raise rifle or limb.

I wrote about the significance of these lyrics, and other aspects of the Texan war of independence, in my article Don't Mess with (Armed) Texans.

As many people know, The Star Spangled Banner and The Texan War Cry were both set to the tune of an older British song, To Anacreon in Heaven, which celebrates the entwining of the fruit of the vine with romantic love.

To Anacreon in Heaven, where he sat in full glee,
A few sons of Harmony sent a petition,
That He their Inspirer and Patron would be;
When this answer arrived from the Jolly Old Grecian
"Voice, Fiddle, and Flute,
"no longer be mute,
"I'll lend you my Name and inspire you to boot,
"And, besides, I'll instruct you like me to entwine
"The Myrtle of Venus with Bacchus's Vine.
II
The news through OLYMPUS immediately flew;
When OLD THUNDER pretended to give himself Airs
"If these mortals are suffer'd their Scheme to persue,
"The Devil a Goddess will stay above the Stairs.
"Hark, already they cry,
"In transports of Joy,
"Away to the Sons of ANACREON we'll fly,
"And there, with good Fellows, we'll learn to entwine
"The Myrtle of VENUS with BUCCUS'S Vine.

III
"The YELLOW-HAIRED GOD and his nine fusty Maids
"From Helicon's Banks will incontinent flee,
"IDALIA will boast but of tenantless Shades,
"And the bi-forked Hill a mere Desart will be
"My Thunder, no fear on't,
"Shall foon do it's Errand,
" and, dam'me! I'll swinge the Ringleaders, I warrant,
"I'll trim the young Dogs, for thus daring to twine
"The Myrtle of VENUS with BACCUS'S Vine.

IV
APOLLO rose up; and faid, "Pr'ythee ne'er quarrel,
"Good King of the Gods, with my Vot'ries below:
"Your Thunder is useless." - then, fhewing his Laurel,
Cry'd, "Sic evitabile fulmen, you know! ["This repels thunder"]
"then over each Head
"My Laurels I'll spread;
"So my Sons from your Crackers no Mischief shall dread,
"Whilst snug in their Club-Room, they jovially twine
"The Myrtle of VENUS with BACCUS'S Vine.

V
Next MOMUS got up, with his risible Phiz,
And swore with APOLLO he'd cheerfully join
"The full Tide of Harmony still shall be his,
"But the Song, and the Catch, & the Laugh shall be mine
"Then, JOVE, be not jealous
Of these honest Fellows.
Cry'd JOVE, "We relent, since the Truth you now tell us;
"And swear, by OLD STYX, that they long shall entwine
"The Myrtle of VENUS with BACCUS'S Vine.

VI
Ye sons of ANACREON, then, join Hand in Hand;
Preserve Unanimity, Friendship, and Love!
'Tis your's to support what's so happily plann'd;
You've the Sanction of Gods, and the FIAT of Jove.
While thus we agree
Our Toast let it be.
May our club flourish happy, united and free!
And long may the Sons of ANACREON intwine
The Myrtle of VENUS with BACCUS'S Vine.

Personally, I like all three sets of lyrics, and I also like other versions of The Star Spangled Banner which, in previous decades, have attempted to make our national anthem immediately accessible to new immigrants who are just beginning their journey towards citizenship and learning English. For these immigrants, a native-language version of The Star Spangled Banner was a step along the path to the day when they could renounce their allegiance to their native land, and take the American Oath of Citizenship:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgement whereof I have hereunto affixed my signature.

It seems to me that the real cause for controversy about Nuestro Himno is not that it's in Spanish, or that it revises Francis Scott Key's lyrics in ways that, within the four corners of the lyrics, are not objectionable. My objection is that the song is currently used on behalf of a movement of people who--while demanding U.S. citizenship as a "right" despite their flagrant violations of U.S. immigration laws--are too often not willing to assume the duties of U.S. citizenship, which begin when the citizen affirms: "I absolutely and entirely renounce and abjure all allegiance and fidelity to any...state...of...which I have heretofore been a subject..."

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[David Kopel, May 7, 2006 at 1:28pm] 1 Trackbacks / Possibly More Trackbacks

Biased Media Coverage of the Illegal Alien May Day Rallies

That's the topic of my latest Rocky Mountain News column, which examines how the Denver papers glossed over the significance of May 1 for the rally date, ignored the role of A.N.S.W.E.R., pretended that the reconquista does not exist, claimed that illegal aliens are merely demanding their "rights," defamed critics of illegal immigration by calling them "anti-immigrant," and too often used the ridiculous phrase "undocumented worker."

Regarding the final item, I wrote:

If the newspapers are going to continue using "undocumented worker," then the papers should, to be consistent, start writing that illegal users of morphine are really "undocumented patients," that bank embezzlers are "undocumented withdrawers," school truants are "undocumented vacationers," people who drive after their licenses have been revoked are "undocumented drivers," and 15-year-olds who use fake IDs to buy vodka are "undocumented drinkers."

On a completely different topic, the Independence Institute's new podcast series, iVoices, has a new 10 minute podcast by me discussing current trends in gun laws.

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[David Kopel, May 1, 2006 at 10:24am] 3 Trackbacks / Possibly More Trackbacks

Did Elaine Pagels Falsify a Quote?

Princeton University professor Elaine Pagels is widely quoted in the media as an expert on early Christianity; she is often a sympathetic advocate in favor of bogus documents about early Christianity, whether those bogus documents be ancient (such as the so-called Judas Gospel) or modern (such as The DaVinci Code). Jesuit Paul Mankowski, in his essay "The Pagels Imposture," suggests that Pagels' reputation for expertise is undeserved. Dissecting a Pagels passage about Ireneus (an early church father who wrote an essay against heresies), Mankowski shows that "Pagels has carpentered a non-existent quotation, putatively from an ancient source, by silent suppression of relevant context, silent omission of troublesome words, and a mid-sentence shift of 34 chapters backwards through the cited text, so as deliberately to pervert the meaning of the original." If the Mankowski essay is accurate, then there does appear to be reason for readers to be cautious about presuming the accuracy of the rest of Pagels' writings.

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[David Kopel, April 18, 2006 at 6:16pm] 0 Trackbacks / Possibly More Trackbacks

Dark Skies Issue Paper:

Dark Skies legislation aims to protect the view of the night sky, by restricting some uses of night-time lighting. In a new Issue Paper from the Independence Institute, Michael Loatman and I argue in favor of Dark Skies ordinances, offer suggestions for particular ways to implement such ordinances, and caution against excessively stringent ordinances. We acknowledge that, although the night sky is beautiful and inspiring, research shows street lighting significantly reduces crime. We also urge that Dark Sky ordinances be prospective in application. Many thanks to all the VC readers who provided helpful comments after I posted a draft of the Issue Paper last fall.

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[David Kopel, April 13, 2006 at 7:33pm] 0 Trackbacks / Possibly More Trackbacks

Jaruzelski charged with leading an armed criminal organization:

Poland's former communist dictator, General Jaruzelski, has been criminally charged with leading "a crime related armed organization." That organization, of course, was the government of Poland.

To some people, the notion that a government could be a crime organization would seem strange; for example, Richard Nixon once declared "If the President does it, it's not illegal." One of the ways in which the Roman Empire showed its inferiority to the Roman Republic was by espousing the notion that the Princeps was above the law.

The better view, however, is the rule of law also applies to the government, and that governments can indeed degenerate into criminal organizations. In The City of God, Augustine wrote: "If justice be taken away, what are governments but great bands of robbers?" He told a story attributed to Cicero.

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, "What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor."

(The story appears in a section of Cicero's Commwealth from which several pages of the original text have been lost, and only the final sentence remains.)

The same point was also made, centuries before, by the great Jewish scholar Philo of Alexandria. And as Don Kates, explained in an excellent article in Constitutional Commentary, the American Founders (and their British intellectual influences, such as Blackstone and Locke) thought that the right of self-defense was applicable against either a small band of criminals or against a larger groups of criminals which called themselves a "government."

[David Kopel, April 8, 2006 at 1:29pm] 11 Trackbacks / Possibly More Trackbacks

The Judas Gospel:

Suppose that sometime around the year 3,800 A.D., someone wrote a newspaper that began: "According to a recently-discovered document, which appears to have been written sometime before 1926, Benedict Arnold did not attempt to betray George Washington and the American cause, as is commonly believed. Rather, Benedict Arnold was acting at the request of George Washington, because Washington wanted Arnold to help him create a dictatorship of the proletariat and the abolition of private property."

A reader who knew her ancient history would recognize that the newly-discovered "Arnold document" was almost certainly not a historically accurate account of the relationship between George Washington and Benedict Arnold. The reader would know that the terms "dictatorship of the proletariat" and "abolition of private property" come from a political philosophy, Marxism, which was created long after Washington and Arnold were dead. The reader would also know that the most reliable records from the 18th century provided no support for the theory that Washington or Arnold favored a dictatorship of the proletariat or the abolition of private property.

This Friday's coverage of the so-called "Gospel of Judas" in much of the U.S. media was appallingly stupid. The Judas gospel is interesting in its own right, but the notion that it disproves, or casts into doubt, the traditional orthodox understanding of the betrayal of Jesus is preposterous.

In the March 2 issue of USA Today, ancient Egyptian documents expert James Robinson correctly predicted that the owners of the Judas Gospel manuscript would attempt to release it to coincide with the publicity build-up for "The DaVinci Code" movie, but explained that the "gospel" was part of a genre of pseudo-gospels from the second century onward, in which the authors simply made up the stories. In contrast, virtually all serious scholarship about the canonical gospels (Matthew, Mark, Luke, and John) believes that they were written much closer to the events they describe--sometime in the first century a.d.

The influential Christian bishop Ireneus, in his treatise Against Heresies, written in 180 a.d., denounced the Gospel of Judas as the product of a gnostic sect called the Cainites. (Book 1, ch. 31, para. 1.)

The "Gospel of Judas" asserts that Jesus asked Judas to betray Jesus so that Jesus's spirit could be liberated from its earthly body. ("You will exceed all of them. For you will sacrifice the man that clothes me.") This statement is a classic expression of gnosticism, and for that reason is antithetical to Christianity.

Unfortunately, the amazingly mendacious DaVinci Code presents a picture of gnosticism that is wildly false — so it is helpful to set the record straight about what gnostics really believed.

The roots of the Gospel of Judas and of gnosticism go back to Marcion (approx. 100-160 a.d.). After he was excommunicated for heresy, he founded his own sect, the Marcionites. The Marcionites never grew as numerous as orthodox Christians, but for several centuries they were important rivals to the orthodox.

The Marcionites believed that the physical world was created by the angry god of the Old Testament, and that Jesus had been sent by a different god, who had nothing to do with the created world. Marcionites strove to avoid all contact with the created world. They were celibate, and ultra-ascetic. They did not even allow the use of wine at communion, insisting only on bread. Consistent with this highly ascetic view, they rejected war in any form. The Marcionites also denied the authority of the Old Testament, and most of the Gospels. Their only scriptures were portions of Luke, and ten epistles from Paul. (The idea of expunging the Old Testament from the Christian Bible was reintroduced by Adolf von Harnack, a very influential late-nineteenth and early twentieth-century liberal Protestant theologian. The Nazis enthusiastically adopted Harnack’s proposal.)

The great nineteenth-century Catholic theologian John Henry Cardinal Newman explained that gnostics such as the Marcionites believed in "the intrinsic malignity of matter." The rejection of the Old Testament was necessary because the Old Testament is replete with stories about the wonders of the created world. In the first chapter of the first book of the Bible, God looked at his newly-created natural world, "and God saw that it was good." Then, "God created man in his own image, in the image of God created he him; male and female created he them....And so God saw every thing that he had made, and, behold, it was very good." The Song of Songs rejoices in a newly-married couple’s sensuous love. Ecclesiastes celebrates the natural cycle of life.

The New Testament agreed that the God who was the father of Jesus was the same God who had made the material world. In Acts, the Apostles prayed "Lord, thou are God, which has made heaven, and earth, and the sea..."

Newman also pointed out that "All the Gnostic sects seem to have condemned marriage for one or another reason." This is the opposite of the mainstream Christian view which, while recognizing that celibacy can be a special calling for some people, celebrates "holy matrimony." The Marcionites acknowledged that Jesus had been born of a woman, but claimed that the fetal Jesus never touched Mary’s body or received any nourishment from her womb.

The Marcionite and other forms of Gnostic pacifism have a reasonable internal logic. If the entire world and every human body is repulsively unclean (if one looks on the whole creation the same way that the Old Testament regarded a leprous corpse), then it makes sense never to lift a finger to defend a human being who is being attacked. Why try to preserve the evil human body from destruction? And how sinful it would seem, in the Gnostic view, to involve oneself in the material world so greatly that one would actually use a physical weapon.

The earliest Christians seem to have foreseen that something like gnosticism would attempt to substitute itself for Christianity. In the First Epistle to Timothy, Paul specifically warned about the false teaching that would arise from "doctrines of devils." The evil doctrines that would arise in "latter times" would be "Forbidding to marry, and commanding to abstain from meats, which God hath created to be received with thanksgiving of them which believe and know the truth. For every creature of God is good, and nothing to be refused, if it be received with thanksgiving."

Timothy’s instructions also drew an important parallel between the carnal eating of meat and the carnality of marriage. Both are gifts which God created for humanity.

Gnosticism’s hatred of the created world sets it in direct opposition to Jewish and Christian doctrine from the first chapter of Genesis all the way through the New Testament.

The Gospel of Judas adds no historical information to the biography of Jesus, but it does provide additional information about the gnostic heresy which thrived in the mid-second century, and which has attracted many adherents today as well.

UPDATE: Fantastic Planet provides very interesting, thoughtful commentary about the Gospel of Judas, written by a modern Gnostic.

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[David Kopel, April 5, 2006 at 12:43am] 0 Trackbacks / Possibly More Trackbacks

Journal on Firearms & Public Policy now accepting submissions

I am the Editor of an interdisciplinary academic journal, the Journal on Firearms and Public Policy. The Journal is now accepting submissions for its next volume, our 18th year of publication. Some sample issues, in PDF, are here. (We hope eventually to put all volumes on-line.) Because we are interdisciplinary, articles may be written in a variety of academic and citation styles, including law, history, social science, philosophy, and so forth. The JFPP's circulation is vastly larger than most academic journals. If you would like to submit an article, or send a query about possible submission, please write me at the e-mail link on the lower-left column of my website.

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David Kopel, April 1, 2006 at 3:15am] 4 Trackbacks / Possibly More Trackbacks

Hurray for Jim and Sarah Brady:

In a Friday interview with the Washington Post, Jim and Sarah Brady state: "In the first place, lets make it clear we don't want restrictions on law abiding citizens beyond making sure that all gun purchasers undergo a complete and comprehensive background check." (Although they do still support local bans on all firearms if "a locality has voted it in themselves", and state or national bans on firearms which they claim are weapons of war.)

The Brady interview marks, apparently, a repudiation of many proposals which the Brady Campaign (formerly known as Handgun Control, Inc., and before that known as the National Committee to Control Handguns) has previously advocated. Such now-repudiated proposals include:

The "Brady II" proposal from 1994 declaring that ownership of a certain number of guns or gun parts or ammunition constitutes an "arsenal" which should require special licensing and subject the owner to warrantless home inspections.

Mrs. Brady's 1993 advocacy of a "needs-based" licensing system, in which police could deny a prospective gun purchase under the theory that the buyer does not "need" the gun.

So-called "safe storage" laws enacted in several states and cities, thanks to effective lobbying from the Brady Campaign, requiring that guns be locked up, and, in many cases, inaccessible for emergency self-defense. Legislatures which enacted these laws should be informed that the Brady Campaign, although formerly supportive of such laws, no longer supports them.

"One-gun a month laws." Repealed in South Carolina, but still in effect in Maryland, California, and Virginia, as a direct result of Brady Campaign lobbying. With the Brady Campaign now repudiating gun rationing, these laws should be repealed.

Perhaps the Brady Campaign will withdraw from membership in IANSA (International Action Network on Small Arms) which promotes many extreme gun laws which go far beyond the Brady objective of comprehensive background checks; such laws include banning all handguns, banning all long guns which can shoot over 100 meters (that is, almost all rifles), banning all self-loading guns (the Brady Campaign has long insisted that only some self-loading guns should be considered "assault weapons"), and prohibiting gun ownership for self-defense.

If the Brady Campaign takes action to give meaning to its leaders' declarations in the Washington Post, the Campaign will deserve respect from all sides of the gun debate for supporting reform of overly restrictive laws which the Campaign now, apparently, acknowledges were mistakes.

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All George Mason, All the Time:

As the George Mason Patriots prepare for the Final Four, and loyal V.C. readers everywhere hope for the ultimate National Championship match-up of George Mason vs. UCLA, I thought that now would be a good time to note some of George Mason's contributions to the right to keep and bear arms.

On September 21, 1774, George Mason and George Washington co-founded the Fairfax County Militia Association, which Mason chaired. When Washington attended the May 1775 meeting of the Continental Congress, he wore the blue and buff uniform of the Fairfax County Militia; Congress appointed him General of the Continental Army and the blue and buff later became the colors of the Continental Army.

In January 1775, the Fairfax County Militia issued Mason's Fairfax County Militia Plan:

A well-regulated militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army...and we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Moulds, with a Cartouch box, or powder horn, and Bag for Balls.

1 George Mason, Papers 210-11 (1970), quoted in Stephen P. Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60 (1984).

Mason authored the Virginia Declaration of Rights (June 2, 1776), which stated in article 13:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Mason wrote the Richmond Antifederal Committee's June 11, 1788, proposal for Bill of Rights to be added to the United States Constitution. The 17th item stated:

That the People have a Right to keep & bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.

As the Virginia ratifying convention, Mason pointed out:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

He also warned the convention (June 14, 1788):

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia.... But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.

Like many anti-federalists, Mason worried that the present militia, composed of the entire people, might one day be replaced by a much narrower militia:

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. [Note: the final two concerns were partially addressed by the Fifth Amendment, which requires Grand Jury indictments before prosecutions for serious crimes, except "in the Militia, when in actual service in time of War or public danger" and by the Eighth Amendment, which forbids "cruel and unusual" punishments for anyone, including people in active militia service.] But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep & bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Some George Mason University publications involving the Second Amendment and related issues: Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); David B. Kopel, The Brady Bill Comes Due: The Printz Case and State Autonomy, George Mason University Civil Rights Law J.; Stefan B. Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).

Some notable George Mason Univeristy professors who have written about the Second Amendment: Stephen P. Halbrook (Asst. Prof. Philosophy, 1980-81); Walter Williams (Economics); Nelson Lund (Law), Patrick Henry Professor of Constitutional Law and the Second Amendment; Daniel Polsby (Dean, Law).

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[David Kopel, April 1, 2006 at 12:35am] 7 Trackbacks / Possibly More Trackbacks

Nebraska is 40th state to enact Shall Issue licenses for defensive handgun carrying:

Yesterday the Nebraska legislature defeated a filibuster, and passed a Shall Issue law for licensing the carrying of concealed handguns by adults who pass a background check and a safety class. Nebraska's governor has said he will sign the bill into law.

The law does not preempt Omaha's ban on concealed carry; in this regard, the Nebraska law is like Pennsylvania's 1989 Shall Issue law, which allowed Philadelphia to refuse to issue permits to qualified citizens. Later, the statewide success of the Pennsylvania law convinced the legislature to eliminate the Philadelphia loophole. Omaha's loophole will probably be eliminated sometime within a decade.

Here is the nationwide status of the law regarding carrying of concealed handguns for lawful defense:

40 states generally allow such carrying:

No permit needed. 2 states do not require a permit for any adult who is legally allowed to possess a firearm. These are Alaska and Vermont. These states will issue a permit, however, upon application. (See discussion of “reciprocity,” below, for why a person would want a permit.)

"Do Issue." 3 states have statutes which reserve some discretion to the issuing law enforcement agency. These are Alabama, Connecticut, and Iowa. In these states, local law enforcement will generally issue a permit to the same kinds of persons who would qualify for a permit in a Shall Issue state.

"Shall Issue." 35 states, including all states not listed elsewhere. Nebraska (this week) and Kansas (last week) are the most recent states to join this list.

10 states generally do not allow such carrying.

"No Issue." Illinois and Wisconsin have no process for issuing concealed carry permits. Illinois allows certain persons (e.g., law enforcement, security guards) to carry without a permit. By a decision of the Wisconsin Supreme Court, no permit is needed for concealed carry in one's home or place of business. (See my Albany Law Review article for discussion of the Wisconsin and Rhode Island cases.)

"Capricious Issue." 8 coastal states give local law enforcement almost unlimited discretion to issue permits, and permits are rarely issued in most jurisdictions, except to celebrities or other influentials. These states are Hawaii, California, Delaware, Maryland, New Jersey, New York, Massachusetts, and Rhode Island.

The future:

The Wisconsin legislature has twice come within one or two votes of over-riding the Governor's veto of a Shall Issue law. In every state where Shall Issue laws have been blocked by a veto, a Shall Issue law has eventually been enacted. It seems reasonable to predict that Wisconsin will one day become a Shall Issue state.

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision of the Rhode Island Supreme Court suggests that this state of affairs is untenable. All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

The Delaware legislature is currently considering a Shall Issue law, and proponents seem optimistic. I suggest that Delaware's politics are, on the whole, more similar to the normal pattern of the 40 issuing states than to the 9 other hold-outs. I expect Delaware to enact a Shall Issue law, perhaps this year, or within the next several years. (UPDATE: The bill has passed one committee, and has enough co-sponsors to pass both houses; the Governor has not yet taken a position. As with Wisconsin, the existence of majority support in both houses makes Shall Issue a near-certainty to become law sooner or later.)

Of the remaining seven hold-outs, three states (New York, Illinois, and California) have previously passed a Shall Issue bill through a single house of the legislature. The passage suggests that Shall Issue, although hardly easy to enact into law, might be accomplished. In all seven of the final hold-out states, it would appear almost impossible to pass a Shall Issue law by a wide enough margin to over-ride a veto.

The pattern in almost all the states with Shall Issue laws has gone something like this: Initial discussions follow a predictable pattern, with proponents promising reductions in the crime rate, and opponents warning of Wild West shootouts. John Lott is discussed, pro and con, in infinite detail.

Over time, the personal testimony of female Shall Issue advocates sways some legislators. Other legislators, looking at the experience of other states, conclude that Shall Issue is, at the least, harmless; the lurid and sweeping predictions of opponents have not come true anywhere. The more states that enact Shall Issue laws, the more that legislators in a hold-out states become open to the idea that Shall Issue is not dangerous. Ohio, Minnesota, and Michigan are examples of states which are not considered strongly pro-gun, and whose enactment of Shall Issue legislation was possible only because so many other states had acted previously. As the number of Shall Issue states rises, so does the possibility of enacting Shall Issue in the dwindling number of hold-outs.

As momentum builds in a given state, the bill eventually attracts the support of all or almost all Republican legislators, and of almost all Democrats with a C rating or higher from the National Rifle Association. Many of the swing votes (the C-rated legislators, who say that they are pro-Second Amendment, but who often vote for gun control laws) are attracted by the objective standards of the Shall Issue system--which, unlike the Capricious Issue system--forbids gun carrying in certain places (e.g., hospitals), sets objective standards about who may not receive a permit (persons with various disqualifying conditions), and (in most states) requires a specific amount of firearms safety training.

Interestingly, Congress passed the Brady Bill 5-government-working-day waiting period for handgun purchases when there were only 22 states that had any kind of waiting period (and in many of those states, the wait was shorter than the Brady wait). As the number of states which regularly issue carry permits climbs into the 40s, the correlation of forces in Congress in favor of a national carry law also increases.

Brady passed in part because it was a "free" vote for some legislators. A legislator from, say, California, who usually but not always supported gun-owners could vote for Brady (earning praise from most of the media) while at the same time doing nothing that interfered directly with the gun purchase rights of his own constituents (since California already had a 15 day waiting period).

Conversely, a legislator from, say, Ohio, who usually but not always supports gun control, can now cast a "free" vote for a national carry law; he can curry some favor with pro-gun interests, while doing nothing to weaken the gun controls in effect in Ohio (which already has a Shall Issue law).

I am not arguing for or against the merits of a national Shall Issue law—merely commenting on the political realities.

For many decades, every state has recognized driver’s licenses issued by any other states. For concealed handgun licenses, the trend is clearly in that direction. As detailed by packing.org, today a permit issued by one state can be used in 28 states, through the principle of “reciprocity.” The new Kansas law will have reciprocity, while the Nebraska law does not. (Often, states with no reciprocity or weak reciprocity add a broader reciprocity provision several years after the enactment of the Shall Issue law.) A number of other states (e.g., Maine, N.H., Conn., Washington, Nevada), although having no reciprocity or limited reciprocity, issue their own permits to non-residents. (Nevada, however, requires that the training be conducted in Nevada.)

The continuing expansion of reciprocity also adds strength to the movement towards a federal Shall Issue law.

Significantly, Congress has also created the precedent, by enacting legislation which allows police officers and retired police from any state, after following certain procedures, to carry firearms in all fifty states.

In addition, I suggest that one day within the next 20 years, Congress and the President will decide that it is anomolous that residents of the District of Columbia are denied the defensive handgun carry rights which are enjoyed by the residents of all (or nearly all) 50 states; Congress will use its authority to legislate for the District of Columbia and will enact a Shall Issue system for residents of the District.

The modern trends towards Shall Issue was started when Florida became a Shall Issue state in 1988; previous Shall Issue bills had been vetoed by Governor Graham, but Governor Martinez signed the bill. The bill was the project of Marion Hammer, the head of Unified Sportsmen of Florida, who later served as President of the National Rifle Association. A few states (such as Washington and the Dakotas) already had Shall Issue laws, but the Florida law was the one that began a national movement.

Hammer was also the prime mover of the NRA’s Eddie Eagle gun safety program, in which a costumed character (similar to Smokey the Bear) teaches young children that they should only be around guns if there is a responsible adult present; if a children find an unattended gun, they should “Stop! Don’t touch! Leave the area! Tell an adult!” The Eddie Eagle program has now been taught to millions of children nationwide.

Hammer’s latest Florida success is Stand Your Ground legislation, affirming that victims of a violent felony do not need to retreat (even in a public area) before using forceful self-defense. As with Shall Issue, there are already some states, such as Utah, with strong protections of self-defense rights, but the 2005 Florida law may begin a national trend in which, every year, a few more states enact Stand Your Ground laws. Indiana and South Dakota enacted Stand Your Ground laws this year, and Georgia and Alabama may also do so soon.

UPDATE: Mississippi enacted Stand Your Ground (a/k/a "Castle Doctrine") this week; the bill applies to homes, cars, and one's place of business (and thus is weaker than the Florida model, just as some states have Shall Issue laws which are more restrictive than the Florida model).

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[David Kopel, March 30, 2006 at 2:05am] 0 Trackbacks / Possibly More Trackbacks

Iranian teenager to be executed for self-defense against a rapist:

Amnesty International reports this case from Iran:

On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court.
According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death.

Human rights activists have created an on-line petition to save Nazanin's life. I've signed the petition, and I urge all readers to do the same.

Amnesty International points out that the execution would violate Iran's obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

However, the AI argument appears to have a significant weakness. When ratifying the CRC, Iran also made the following reservation: "The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect." I have not found information indicating that Iran made any reservation when ratifying the ICCRR, which also bars executions for crimes committed when the perpetrator was under the age of 18.

According to a modern summary of Islamic law:

There is a natural right to self-defense. One may defend oneself from a criminal act that poses an imminent threat to person or property, but only necessary force may be used. An intruder who might be repelled with a stick may not be shot and killed; neither may one pursue an intruder who has retreated and is no longer a threat. Violation of the limits of self-defense is aggression and renders one criminally liable.

Matthew Lippman, Sean McConville & Mordechia Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (Westport, Conn.: Praeger, 1988), p. 56.

The above-quoted scholars appear to be consistent with the view of the nineteenth century Islamic jurist Ulaysh, who "wrote that all jurists have always agreed that Muslims have the right to defend their life and their property." (Quoted from Khaled El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge Univ. Pr., 2001), pp. 334-35.) El Fadl's quote is consistent with the practice of many Islamic nations of denying dhimmi (non-Muslims) any right to defend themselves against Muslims, or to possess arms. (See Bat Ye'or's books for details.) However, the dhimmi exception to self-defense does not appear to be relevant in the Nazanin case.

So I have two starting questions for commenters: For those of you who can read Persian, is there any evidence from the Iranian press, or other media, suggesting that Nazanin was not actually acting in self-defense, or that her use of deadly force was legally excessive?

Second, for readers familiar with Shari'a law, are there any legal precedents suggesting that a female teenager acted by stranger rapists would not possess the ordinary Muslim's right to self-defense?

Third--and this question is for everyone--are there international law arguments that the Iranian government cannot lawfully abrogate the right to self-defense? Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5, 1955), art. 2 (2)), and the Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9, art. 31) both recognize a right of self-defense, but of course neither document is applicable to domestic Iranian law.

Are there other international treaties which recognize a right of personal (rather than national) self-defense? Are any of these applicable to Iran?

In addition to positive international law, a defender of Nazanin might also argue from customary international law. Below is a sketch of one such argument, based on my own research. I invite commenters with international law expertise to amplify, correct, and otherwise suggest improvements or flaws in the argument.

1. Even in the absence of positive enactments, humans have certain fundamental rights which no government can violate. (See, e.g, Grotius, Vittorio, Locke, Declaration of Independence).

2. In extreme cases, a government which violates those fundamental rights can be overthrown, and the perpetrators of the rights violation can be punished. A person who denies the previous sentence must necessarily conclude that the Nuremberg and Tokyo war crimes trials were illegal, since, for example, there was no positive law forbidding the genocide at the time the Germans and Japanese perpetrated genocide.

3. Even if ex post facto principles about positive law made it unjust to punish some of the Germans and Japanese, it was still lawful for the Allies (even putting aside issues of national self-defense and treaty obligations towards countries such as Poland) to attempt to interfere with on-going violations of fundamental human rights by the Japanese and Germans.

4. Even if there were no right to interfere or punish, a person in, say 1938, could correctly say "The German and Japanese governments are in violation of international law, because they are violating many fundamental human rights of their subjects, including rights which have always been regarded as fundamental by the vast majority of mankind throughout recorded history."

5. Self-defense is a fundamental human right, and has been so regarded by the vast majority of mankind throughout recorded history. For example, the right of self-defense is recognized by ancient and modern Jewish law, by the Catholic law which formed the basis of Western law (and which was predicated on the recognization of self-defense rights by ancient Greece, ancient Rome, and the Byzantines), by the great Protestant religious philosophers who shaped the United Kingdom, by the American revolutionaries, and by all the major religions of Asia.

Note: Although some Christians and Buddhists have believed that a truly enlightened person should not engage in self-defense, non-resistance was always presented as a higher moral choice, and there was no suggestion (at least until quite recently in the West), that the government should forbid self-defense.

6. The above litany of sources recognizing a right of personal self-defense is illustrative, rather than exhaustive. (Commenters are invited to supply additional sources, of the type traditionally cited in international law.)

7. The right of self-defense has been recognized by the overwhelming majority of all legal systems throughout human history. The only known exceptions are those which obviously relate to very special circumstances (e.g., prisoners against guards; soldiers against superior officers), or which, by their very nature, are so odious as to shock the conscience (e.g., Japanese peasants forbidden to resist Samurai; tyrannies; slaves; persecuted religious or ethnic groups). The fact that no known legal system has (outside of special cases) ever denied self-defense rights except in circumstances which are self-evidently odious is further proof that customary law has, from time immemorial, recognized a right of self-defense.

8. The parameters of the right to self-defense have varied over time, but, at the very least, they have always included the right of a chaste woman to resist rape by strangers who have no relationship of any sort with the woman or her family. (The historical exceptions to a woman's right to resist rape are in themselves odious, but they appear to be irrelevant to the Nazanin case.)

9. Deadly force may be used to resist rape, if no lesser force will suffice.

10. The right to resist rape also includes the right to use force to protect a close relative from being raped.

The above statements represent my current understanding, but I welcome clarifications from commenters about circumstances in which the above statements might be untrue--such as legal codes which forbade self-defense, or forbade deadly force as a last resort against a rapist.

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[Note: The entries for March 20-24 are from a guestblogging appearance at Overlawyered.com]

Licensed Handgun Carry Wins in Kansas

Over-riding the Governor's veto, the Kansas legislature has enacted a "Shall Issue" law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.

Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, Illinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.

In Wisconsin, a Shall Issue bill has been vetoed twice, with the vetoes sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law--although sometimes the process can take a while.

So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possibility of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local governments must issue carry permits to qualified applicants.

So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.

Every year, more and more Shall Issue states create "reciprocity" with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)

As the combined total of "no issue" or "whimsical issue" states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control -- one that regulates firearms carrying but does not infringe the right to self-defense.

For more on the Kansas law, see this excellent article in the Wichita Eagle.

Posted by Dave Kopel, March 24, 2006, at 03:02 AM | Permalink | Comments (0) | TrackBacks (0)

Sensible Public Health

Here's a story about a public health intervention that:

1. Appears to have reduced the rate of sexually transmitted diseases.
2. Especially by encouraging people to have a check-up.
3. Appears to have been fairly inexpensive.
4. Involved no coercion.

The Bay Area Reporter offers a story about a costumed character who promotes sexual disease control (sort of like Smokey the Bear encourages people to prevent forest fires). But the particular costume would scandalize many people. Read the whole article before you make up your own mind.

Posted by Dave Kopel at 01:24 AM | Permalink | Comments (1) | TrackBacks (0)

Major Development in Syria

The opponents of the Assad regime have announced a united front coalition. The expatriate Syrian blogger Ammar Abdulhamid analyzes the coalition, and concludes that, even though the coalition leaders are hardly white knights, the coalition offers the best chance to lead a transition to a post-Assad state that does not degenerate into warlordism.

Posted by Dave Kopel at 12:46 AM | Permalink | Comments (0) | TrackBacks (0)

Don't Mess with Texas Morals Police: Tavern Patrons Arrested for Intoxication

"Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said," according to Reuters. Public intoxication is illegal in Texas, and the authorities contend that their preemptive arrests will prevent people from driving drunk or committing other offenses. HT Peaktalk.

Posted by Dave Kopel at 03:34 AM | Permalink | Comments (2) | TrackBacks (1)

Easier Forfeiture of Property: The New Federal Rules of Civil Procedure

According to Forfeiture Endangers American Rights, the U.S. Dept. of Justice is proposing revisions of the Federal Rules of Civil Procedure which would facilitate property forfeiture. The FEAR site links to the new draft rules, and to critiques of those rules.

Posted by Dave Kopel at 03:16 AM | Permalink | Comments (0) | TrackBacks (0)

Human Rights = Allah

The Brussels Journal points out the close resemblance between the Arabic word for "Allah" and the logo of the UN Human Rights Commission, which may have been imposed by " a high-ranking Muslim UN official ." Even if "Allah" is not the official UN Human Rights Commission logo, the UN acts as if it were. Brussels Journals points to "last week's common declaration signed by EU Foreign Policy Coordinator Javier Solana, UN Secretary-General Kofi Annan and Ekmeleddin Ihsanoglu, the Secretary-General of the Organisation of the Islamic Conference (OIC). The three men pledged to rewrite the UN Human Rights Charter to 'protect the sanctity of religions and the prophets.'"

Posted by Dave Kopel at 02:32 AM | Permalink | Comments (0) | TrackBacks (0)

Today's Courageous Feminists

Cinnamon Stillwell observes International Women's Day by observing that:

the real radical women in the world go largely unremarked by the feminist movement. Today's true heroines are those who do battle with the gender apartheid, violence and oppression practiced against women in the Muslim world. There, women face not just phantom infringements to their civil rights and perceived slights to their sensitivities, but threats to their lives.

Read the whole article for an inspiring litany of women putting lives on the line by speaking out against Islamist oppression.

Posted by Dave Kopel March 22, 2006, at 04:49 PM | Permalink | Comments (0) | TrackBacks (0)

Whoopie Cushion Chair Prompts Lawsuit

Today's Times of London reports an employment law claim by a teacher who chair made flatulent noises whenever she moved. The teacher, who resigned her position, is claiming constructive dismissal, and asking for one million Pounds in compensation.

Asked why she did not sort out the problem, she told the tribunal: “It’s a health and safety issue for an employer to ensure you have a comfortable chair.”

A chair that forces a person into bad posture might well be a health and safety issue, but a chair that merely causes embarrassment is plainly not a health and safety issue -- although the chair should still be replaced.

Posted by Dave Kopel at 01:26 PM | Permalink | Comments (2) | TrackBacks (2)

Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions

Students for Sensible Drug Policy and the American Civil Liberties Union have filed a lawsuit alleging that the federal law which denies federal financial aid to any student with a drug law conviction is unconstitutional. Personally, I think the federal law is atrocious, and would vote to repeal it. But I think the prospects for victory in court are very slim. The SSDP press release points out several good policy arguments, but raises only two legal points:

The law punishes individuals twice for the same infraction. Affected students have already been dealt with by the criminal justice system. Taking away their access to education after they’ve already paid their debt to society is unnecessary. This violates the "double jeopardy" clause of the Fifth Amendment.

Commenters are welcome to correct me if I'm wrong, but I don't think that the Fifth Amendment has ever been interpreted to prohibit governments from choosing to make persons with criminal convictions ineligible for welfare programs, including student aid for higher education.
Second, SSDP argues:

Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse. Forcing students convicted of drug charges to drop out of school makes them more likely to fall into drug abuse or commit crimes (thus becoming costly burdens on the criminal justice system) and less likely to become productive taxpaying citizens (thus reducing the nation’s economic productivity). Congress has no rational basis to attach student aid eligibility to drug convictions, especially since murderers, rapists, burglars, and arsonists can still receive financial aid. This violates the equal protection guarantee of the Fifth Amendment's "due process" clause.

The first half of the paragraph is really a policy argument. The second half -- that it is irrational to deny aid to a person