Earlier today, I blogged about some problems with the New York Times' coverage of the D.C. Circuit's Second Amendment decision; the coverage at times said and at times strongly suggested that this was the first federal court of appeals decision that accepted the individual rights theory, but of course the Fifth Circuit's Emerson decision did the same several years ago. The Times has updated its coverage, and I've posted an UPDATE reflecting that.

Still, I wanted to separately note a problem with the Times' updated coverage, which includes this paragraph:

"The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Actually, Emerson was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 — over 40 pages — discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment." That is "an aside"?

The Times might have been trying to convey the theory that the Emerson opinion is dictum, which is to say not binding because it's not necessary to the holding of the case. The Fifth Circuit began the Second Amendment discussion by asking what the nature of the right was; it concluded the right was individual; it then went on to ask what the scope of the individual right was; it concluded the individual right could be limited in certain ways; and it finally concluded that the statute involved in the case was a permissible limitation. The "dictum" theory is that the individual rights conclusion was unnecessary because the Fifth Circuit could have instead said "Even if we assume the Second Amendment secures an individual right, we'll conclude the right could be limited in certain ways, and the statute involved in this case is a permissible limitation."

But, first — and most important to my criticism of the Times article — dictum isn't the same as "an aside." An aside sounds like a casual, relatively unconsidered assertion. Emerson's 42-page decision, even if it's unnecessary to the holding, is not an aside.

Second — and likely more interesting to those who are more interested in legal questions than in media criticism — Emerson's reasoning is not dictum. Conceptually, that a court could have reached the result some other way doesn't turn into dictum the reasoning that the court actually used to reach the result. And, practically, courts, including the Supreme Court, often decide whether a person's rights are violated by first deciding what the nature of the rights is, rather than using more conditional reasoning.

Consider four such cases: Korematsu v. United States (1944), Everson v. Board of Ed. (1947), Jackson v. Virginia (1979), and Strickland v. Washington (1984). Each of them, like Emerson, had to decide what the basic core of the right was first: Korematsu decided that race discrimination by the federal government was presumptively impermissible; Everson decided that the Establishment Clause was incorporated against the states; Jackson decided that the Due Process Clause required appellate courts to review convictions to see whether there was sufficient evidence to support them; and Strickland decided that the Sixth Amendment protects the right to effective assistance of counsel, and not just the right to counsel.

Yet then each of them nonetheless found that the right was not violated — Korematsu held that the presumption of unconstitutionality was rebutted; Everson held that though states are bound by the Establishment Clause, the program at issue in that case didn't violate the Clause; Jackson held that there was sufficient evidence to convict the defendant; and Strickland held that the assistance of counsel was effective. In each of them, the Court could have avoided the initial constitutional ruling by holding, for instance, that "even assuming (without deciding) that the Establishment Clause is incorporated, it would not be violated here." But the Court didn't avoid the initial constitutional ruling; it made the ruling as part of its chain of reasoning, and then held that the right that it recognized was not violated, as a later part of its chain of reasoning.

I have never heard anyone argue that the nature-of-the-right rulings in these cases were dictum. In fact, Jackson and Strickland are remembered entirely for those rulings. No-one treats them as dictum, which I think further illustrates my conceptual point about dictum: When a court decides first whether a right even exists (is there a right to effective assistance of counsel at all?) and then applies the right, that's an accepted, normal procedure, in which the decision about the right's existence and the right's application are both holding. A court may choose to assume the existence of the right without deciding it; but it is not obligated to do so, and its choice to make the decision about the right's existence does not make the decision dictum.

I'll be talking on the mechanisms of the slippery slope Thursday, March 15, from 12:05 pm to 1:05 pm at Reason's offices in L.A., 3415 S. Sepulveda Blvd. Suite 400, just north of the corner of Sepulveda and Palms. It's a brown-bag lunch, but apparently you can order a lunch by e-mailing mary.toledo at reason.org or calling her at 310-391-2245.

An excerpt from the Washington Post's coverage of the D.C. Circuit's Second Amendment decision:

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, upholding the D.C. law, and saying the Second Amendment was narrowly tailored to membership in a "militia" — which he defined as an organized military body.

The case moved on to the appellate court, with the National Rifle Association and numerous states siding with the pro-gun faction, and the Brady Center to Prevent Gun Violence and other states and cities joining with the District.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that. Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense.

1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

Thanks to PostWatch for the pointer.

A commenter in a thread below questioned the plausibility of the view that "security of a free State" in the Second Amendment could mean "security of a free country," as opposed to security of one of the States of the Union against federal oppression.

Well, it turns out that talk of what institutions -- especially military ones -- are good for a free state is all over Blackstone's influential Commentaries on the Law of England. There, of course, Blackstone had to have been talking of state in the sense of country or nation (American states as subordinates in a federal system were a decade in the future). Consider, for instance, book 1, p. 408 (emphasis added):

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.

Or book 1, p. 415 (emphasis added):

To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.

Or book 1 p. 417 (emphasis added):

Nor is this state of servitude [created by excessively rigorous military discipline during peacetime] quite consistent with the maxims of sound policy observed by other free nations. . For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.

Likewise, Blackstone refers to what is good for free states in discussing the liberty of the press ("The liberty of the press is, indeed, essential to the nature of a free state," book 4, p. 151), in discussing the value of popular government ("In a free state every man, who is supposed a free agent, ought to be in some measure his own governor," book 4, p. 158) -- and in praising what he saw as the calming force of the established Church of England (book 4, p. 104):

[R]eligious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that antient universal observation: that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful authority, and hath been (as her prelates on a trying occasion once expressed itc) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowlege no guide but the scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their law-giver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other, (for I here only speak of extremes) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned.

And life in a free state may also be reason to suffer some inconvenience, book 3, p. 423 (paraphrasing Montesquieu):

But in free states [unlike despotisms such as Turkey] the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty ....

Montesquieu generally used "a free state" in similar ways: "In a free state, every man, who is supposed a free agent, ought to be concerned in his own government: Therefore the legislative should reside in the whole body of the people, or their representatives"; see also the references to "a free state" in this, albeit later, translation of Montesquieu's The Spirit of Laws.

"State" as "country" (or perhaps more precisely a self-governing nation) is of course pretty longstanding usage; article I, section 9, for instance, bars federal officeholders from accepting presents or titles from "any ... foreign state." Article III, section 2 and the Eleventh Amendment likewise use "foreign state" to mean foreign country. But beyond this, "a free state" as indicating what Englishmen and Americans should cherish and aspire to, is right from Blackstone and other contemporaneous writers.

That was United States v. Emerson, a Fifth Circuit decision from a few years ago, which got plenty of press. But apparently that decision somehow vanished in time for the New York Times' coverage of the D.C. Circuit decision recognizing an individual right to bear arms. The Times Web site front page blurbs the article as:

The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms.

A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

But if you think the circuit headcount is important enough to mention in the second sentence, shouldn't you mention that the D.C. Circuit's constitutional interpretation had been accepted by one other federal appeals court? True, that earlier decision upheld the gun control law despite its conclusion that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias. Still, the paragraph makes it sound like the individual rights theory was entirely unprecedented, which it certainly is not.

After all, wouldn't you interpret "has been rejected by nine federal appeals courts" as a statement that the theory has been rejected by nine and accepted by none, as opposed to that it has been rejected by nine and accepted by some unspecified number? And if reasonable readers would do that, shouldn't the Times try to avoid misleading them this way? Either don't do the head count, or state it completely.

In the very last paragraph, the article does say that "Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard." That might seem like a (belated) acknowledgment that not all federal appeals courts that had considered the issue had adopted the collective rights theory, even before this decision. Even on its own, though, it is both belated and ambiguous — given what the article had said earlier, "most" might well be read as meaning "all but this one."

But what that sentence might possibly give in terms of clearing things up, the very next sentence (the last sentence in the piece) takes away, repeating and exacerbating the problem in the second paragraph and in the blurb:

But in yesterday’s decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.

Doesn't that last clause implicitly assert that the Justice Department and some constitutional scholars are the most authoritative bodies to adopt the individual rights view, and implicitly suggest that the view hadn't been accepted by courts? Again, wouldn't it have been less misleading to say "an approach that has been embraced by the Justice Department, by some constitutional scholars, and by the United States Court of Appeals for the Fifth Circuit"?

(If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.)

Thanks to Dan Schmutter for the pointer. (Note that I've reworded the post since I first put it up, chiefly to make it more readable, but also to note the front-page blurb, which I didn't at first see.)

UPDATE: The Times has corrected its front-page blurb to read "Advocates of gun rights said the decision raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners"; and it has added a fourth-to-last paragraph that acknowledges Emerson: "The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Let's recall Emerson: It was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 -- over 40 pages -- discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment," a conclusion that the New York Times labels "an aside." (For more on why the reasoning isn't dictum, see here and here; but it surely isn't an aside.)

So Emerson did rule, as the Times now acknowledges near the end of the article, that the Second Amendment secures an individual right. Yet the Times article's second paragraph still reads, "The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation." Again, why mention the nine other federal appeals courts here, and not mention the Fifth Circuit's acceptance of the individual right interpretation as well?

Likewise, several paragraphs down (and several paragraphs before the acknowledgment of Emerson), the article says, "The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars"; again, why the mention of the Justice Department and some scholars with no mention of the Fifth Circuit? Much as I like to think our scholarly views are authoritative, surely a court decision is more authoritative -- so that if all that's mentioned is the Justice Department and scholars, readers could reasonably infer that this is the best that the D.C. Circuit had on its side. Not very good work on the Times' part, it seems to me.

Check out the state and city amicus briefs in the D.C. Circuit Second Amendment case on the individual rights side and the collective rights side.

On the individual rights side: Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Texas, Utah, and Wyoming — makes sense, since they are all gun country states (not necessarily red states, but many blue states and blue state politicians support gun rights).

On the collective rights side: Idaho, Maryland, Massachusetts, New Jersey, Boston, Chicago, and New York City. Mostly makes sense — all have relatively heavy gun regulations, all either lack a state constitutional right to bear arms (Maryland, New Jersey, New York), have a state right that has been interpreted as collective (Massachusetts), or have a state individual right that is written and has been read very narrowly (Illinois).

Except one: Idaho, a solid gun country state, with an individual right to bear arms in its state constitution, precedent enforcing it, and even precedent applying the Second Amendment as an individual right to the states (though contrary to the Supreme Court's then-relatively-fresh Cruikshank decision, which held that the Second Amendment didn't apply to the states). True, the precedents are old, but Idahoans' support of gun rights seems to remain current, and the Idaho Attorney General who signed on to the brief — Lawrence Wasden — is a Republican with an A- rating from the NRA.

What's the backstory here? Does AG Wasden simply have firm views on the Second Amendment that he wants to prevail as a matter of legal principle? Does he solidly believe in self-government for D.C., and doesn't want to unduly shackle the D.C. voters' representatives? Is there some personal connection between him and the other states' AGs that led him to try to help a buddy? Inquiring minds want to know.

Thanks to reader Fredrik Nyman for prompting me to post this.

UPDATE: The D.C. Circuit docket sheet reports that Idaho withdrew from the brief. Alan Gura, one of Parker's lawyers reports that "Idaho withdrew its support of that brief, stating that it was in error." Matthew Bower reports (though without claiming 100% confidence) that "The directive to withdraw Idaho's support came directly from the AG, whereas the decision to support the Mass. brief in the first place apparently did not. To my understanding that decision was made by a deputy who rather badly overstepped his bounds." Interesting.

The dissent in the D.C. Circuit Second Amendment case relied chiefly on the theory that, because D.C. is not a State, the Second Amendment — which reads "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" — "does not extend to [D.C.]" She argues that the reasoning of Miller v. United States so commanded:

[Miller held]:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the Constitution [specifically, the Militia Clauses -EV], the Court succinctly — but unambiguously — set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.

The trouble with this reasoning, it seems to me, is that Miller did not hold that the continued vitality of the Militia "is required to safeguard the individual States." Miller talked about the Second Amendment's being aimed at preserving the Militia, which Miller held "comprised all males physically capable of acting in concert for the common defense" (and who, at the Framing, "were expected to appear bearing arms supplied by themselves"). It said nothing about the Militia being required to safeguard the States. And the Militia as understood by Congress (from 1803 to the present) included the citizenry of D.C. as well.

Nor does the reference of a "a free State" exclude D.C.; as the majority points out, "a free State" likely meant what Madison originally wrote, "a free country" ("State" being a common term for country as well as for an individual state). The prefatory clause thus refers to protection of a free country — and it makes sense that the operative clause speaks of the right of "the people," not of state citizens or even of the militia, because it too refers to the people living in this country, including in D.C. and in the territories (recall that the Northwest Territory was an important part of the 1791 United States).

This does leave an interesting question that neither opinion seemed to discuss: The Militia Clauses of article I, section 8 read:

Congress shall have Power ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Does it follow that there may not constitutionally be any Officers or training for any militia in the District of Columbia and the Territories, since while Congress is free to organize, arm, and discipline the Militia everywhere, only the States may appoint officers and train the militia, and no State has jurisdiction in D.C. and the Territories? I doubt it; I would think, as did Congress in 1803, that the Militia — the armed citizenry — can exist and can be officered and trained throughout the breadth of the country. (Perhaps Congress's power to officer and train the D.C. militia comes from the Seat of Government clause and the Territory Clause, which wouldn't be limited by the "reserving to the States" proviso.) And if I'm right, then that's evidence that the citizenry has indeed long been understood as having a right to have arms even in D.C. and the Territories.

are available here. It looks like a pretty comprehensive set, and includes amicus briefs.

Finished my review copy of John Scalzi's Last Colony, the sequel to his Old Man's War and Ghost Brigades. I liked them all a great deal; if you've read and liked the first two, I think you'll much like the third -- if you haven't read the first two, well, start.

The whole decision is much worth reading, and, except for the standing issues, quite nontechnical. It's also hard to boil down, since the argument's components are closely integrated. Still, here is what seems to me to be the best very short excerpt:

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions....

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded “was a large segment of the population” rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias....

[I]f the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.

Whatever one might plausibly say about whether the Second Amendment secures an individual or collective right, and whether it applies to citizens in D.C., it seems to me one can't plausibly say (as the dissent in the D.C. Circuit case did) that the majority opinion is "dicta," or that "the meaning of the Second Amendment in the District of Columbia (District) is purely academic."

Dictum, or the plural dicta, refers to "An opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision" (Black's Law Dictionary). Dictum is not binding on future panels within the Circuit -- though it might be persuasive, just as concurrences (set aside concurrences in the judgment needed to form a majority) are not binding and thus pure dictum, but might be persuasive, and just as dissents might sometimes be persuasive (at least when the contrary view expressed by the majority is not binding). It is also sometimes seen as poor form, though my sense is that nearly all judges engage in it on occasion with little embarrassment.

Thus, if the majority had stated that it thought the right to bear arms was incorporated against the states, that would be dictum, because that conclusion would likely not be essential to the logic of the majority's decision: Since the majority is speaking of a right as against a federal entity under the Second Amendment (the District of Columbia), and its reasoning does not require a judgment about what the right would be as against a state under the Fourteenth Amendment, any opinion on the matter is "not essential to the decision" that the panel handed down.

But deciding whether the right is individual -- and surely deciding "the meaning of the Second Amendment in the District of Columbia" -- is essential to the majority's reasoning. The majority's ultimate conclusion, which is that the D.C. gun ban is unconstitutional as to the one plaintiff who has standing, relies on the intermediate conclusion that the right is individual, and therefore applies to individuals throughout the country, in states or out. As the majority points out on p. 48 n.16, it's possible that the majority's intermediate conclusion is wrong. But, right or wrong, it "directly supports [the majority's] holding," and is therefore holding, not dictum.

Finally, note that reasoning does not become dictum just because the majority could have reached the same result through a narrower decision (an argument that had been made as to the Fifth Circuit Emerson decision holding the Second Amendment to be an individual right, but holding that the Amendment wasn't violated by the statute at issue in that case). For instance, in Everson v. Board of Education (1947), the Court decided that the Establishment Clause applied to the states and not just to the federal government; and the Court also defined in some measure the scope of the Clause. Nonetheless, the Justices went on to apply this (admittedly quite ambiguous) definition to conclude that the Establishment Clause was not violated by the practice at issue in this case. The Court could have just said "even if the Establishment Clause applies to the states, the practice here would not violate the Clause." This would have reached the same result through a narrower decision. But it was not the reasoning that the Court used; and given that deciding on whether the Clause was incorporated was an essential part of the Court's reasoning, that decision is binding holding, not dictum. (For other examples, see here.)

But in any event, regardless of what you think about the "majority could have reached the same result through a narrower decision, so their broader decision is dictum" argument, it can't apply here: Here, adopting the dissent's supposedly narrower view would have yielded the opposite result. Again, the majority's reasoning may well be incorrect holding, but it's holding.

Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.

What will the extra prominence of the issue do to the primaries?

Assume the decision is 5-4 in favor of the individual rights theory; what will that do to the general Presidential election race? Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side — what will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. And if the case is delayed (say, by en banc activity, by a call for the views of the Solicitor General, or the like) so that it's heard in Fall 2008 and expected to be decided in Spring 2009, I take it the effect on the election would be bigger still.

Finally, note that if there is a pro-individual-rights decision from the Supreme Court, I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations.

strikes down D.C.'s gun control law. The opinions in the 2-1 decision, which I haven't read yet but which I will blog about later today, are here. Thanks to How Appealing for the pointer.

I doubt that this will get reversed by the entire D.C. Circuit sitting en banc, though such a reversal is not impossible; the D.C. Circuit is relatively conservative, and conservative judges have historically had different views on this question, as they have recently had on free speech, jury trial, and other constitutional rights. (Recall that Chief Justice Burger, who was indeed quite conservative, expressly took the collective rights view in public statements, though that was before the recent spate of scholarship on the Second Amendment, and before the modest turn towards libertarianism — at least as to enumerated rights — of modern conservatism.)

And if the D.C. Circuit decision survives a call for rehearing en banc, it seems to me that the Supreme Court will indeed agree to hear the case: There would be a square split between the D.C. and Fifth Circuits on the individual right side and several other circuits on the collective right side, a decision based on the individual right in favor of the challenger (so that the District can sensibly appeal), and what looks at first glance to me like a clean procedural posture (summary judgment for a plaintiff).

UPDATE: Several colleagues of mine at Mayer, Brown, Rowe & Maw, at which I'm a part-part-part-time academic affiliate, are representing the Violence Policy Center as amicus in support of the D.C. gun ban; I have been entirely uninvolved in the case, but I thought I would notice my colleagues' participation.

Pierre Schlag's My Dinner at Langdell's (2004). An excerpt:

It was one of those cold wet April Cambridge mornings. Too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse -- the laudanum was wearing off.

Tonight would be dinner at Langdell’s. To say I was apprehensive does not quite capture my condition. It was to be an important affair. I had been asked to attend. It felt like a convocation of sorts -- though to what end, I remained unaware.

It occurred to me that not everyone is invited to Langdell’s for dinner -- certainly not wayward law professors from the provinces. This was an extraordinary opportunity. I took out the engraved invitation from my navy overcoat, just to make sure it was really there. It was, of course -- though having taken it out three or four times previously this morning, the cream-colored paper fibers had begun to separate. The paper felt gummy and the ink was smudged. I coughed and drew my coat around my shoulders. A drink would help.

Langdell, of course, did not know of my present situation. And realistically, how could he? His professional life ended in 1895 when he retired from The Law School. Mine didn’t really begin (if I can call it a beginning at all) until 1991. It would be a chance meeting. By the time I started teaching, he had been dead for nearly 85 years.

I realized, of course, that this would make our encounter all the more difficult, all the more awkward. Indeed, you might reasonably wonder how could we meet at all? A fair question. It is not everyday that a fictional narrator can have dinner with a man who’s been dead for close to 100 years. The problems from both sides are significant. The literary challenge alone is immense.

The Telegraph (UK) reports:

The sale of imitation samurai swords could be banned by the end of the year, the Home Office announced today....

Collectors and martial arts enthusiasts owning or using genuine samurai swords would be exe[mp]t from the ban[.]

According to Home Office estimates, there have been at least 80 serious crimes involving the swords in England and Wales over the last four years.

It is currently legal to buy samurai swords -- which are freely available at martial arts shops and on the internet -- provided they are not brandished in a public place.

The Home Office now wants to ban their sale as part of a wider crackdown on knives and bladed weapons....

Quite similar, in theory and in their problems, to the bans on cheaper "Saturday Night Specials" that allow richer buyers to still get the weapons they want (and thus diminish the political opposition to the bans).

Thanks to Hamline lawprof Joe Olson for the pointer.

Prof. Raymond Tallis had an interesting review of (now Judge) Neil Gorsuch's The Future of Assisted Suicide and Euthanasia in the Jan. 26, 2007 Times Literary Supplement ($). Prof. Tallis disagreed with Judge Gorsuch's opposition to euthanasia, and in the process dismissed Gorsuch's worry about slippery slopes. There's no need to worry, he reasoned, that allowing euthanasia would "have an adverse knock-on effect [i.e., indirect effect] or place vulnerable people at risk":

An appropriately framed law ... would seem to make sure that assisted dying did not fall into that category [of laws that have such an effect]. After all, the wish of a dying person in intolerable pain would seem to be objectively reasonable. This latter criterion prohibits the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who is merely fed up with life or feels her life is worthless. And the appeal to autonomy forbids the extension of assisted dying to non-competent individuals with or without their prior consent -- the first port of call according to those who invoke the slippery-slope argument.

So, the argument goes, the proposal Prof. Tallis endorses is narrow, and slippage-proof: Its careful limitations "prohibit[] the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who ... feels her life is worthless." Moreover, the firm language of "prohibits the extension" suggests that assisted dying also wouldn't be extended beyond the terminally ill suffering unbearably to other places on the continuum between the terminally ill and the merely very unhappy (since that to would be "the extension of assisted dying, beyond the terminally ill suffering unberably" to others). And later on Prof. Tallis makes clear that he sees "terminally ill" in the "appropriately framed law" that he endorses (the Joffe Bill) as involving people who are in "the last few days or weeks of ... life."

But here is what Prof. Tallis goes on to say on the next page, when criticizing Gorsuch's "inviolability of life" principle:

Unfortunately, [Gorsuch's proposed principle] makes the withdrawal of life-preserving treatment as problematic as assisted dying. [Gorsuch] reexamines [In] re B, the case of a mentally competent woman who had become paralysed from the neck down. She requested the ventilator on which she was dependent to be switched off -- an act that would have brought about her immediate death. Neil Gorsuch would not allow her expressed judgement that her life is not worth living to carry weight in law.

And couple that with the preceding page, where Prof. Tallis endorses the view that "the act/omission distinction [is] 'morally superfluous,'" because turning off a ventilator or stopping kidney dialysis involves an aggrement that "[the patient's] death is a price worth paying for ending [the patient's suffering" -- which is exactly the calculation that is made, when at your considered and persistent request, I assist you to take a lethal conoction of drugs. Indeed, the former Surgeon General Everett Koop described such cases as 'euthanasia by omission.'"

So Prof. Tallis seems to think that B in In re B (2 AER 449 (2002)), who was not terminally ill -- certainly not in the sense of being in "the last few days or weeks of ... life" -- is entitled to end her life by demanding that her treatment stop. He also concludes that stopping treatment is equivalent to active euthanasia. It follows, then, that he would endorse active euthanasia even for people who are not "terminally ill" in the Joffe Bill's sense; and he faults Gorsuch, it seems, for taking the contrary view.

Yet what then happens to his assurance that the Joffe Bill's "objective reasonableness" requirement "prohibits the extension of assisted dying, beyond the terminally ill suffering unbearably, to any competent adult who is merely fed up with life or feels her life is worthless"? Perhaps the requirement might prohibit the extension of assisted dying to the merely angst-ridden -- though how can we be entirely confident that a court would resist a depressed person's judgment that her mental suffering is unbearable (see the Dutch case cited on p. 1058 of this article, where the Dutch court did not resist this judgment)? But the requirement does not prohibit slippage beyond the terminally ill to those who are paralyzed: Prof. Tallis himself is faulting Gorsuch for not heeding B's desires, which suggests that Prof. Tallis would see B's desire for death (whether termination of life support or active assisted suicide seems equivalent to Prof. Tallis) as objectively reasonable. So already some extension beyond the terminally ill suffering unbearably is endorsed in the very article that seems to dismiss the risk of such extension.

Now it may well be that assisted suicide for the terminally ill should be allowed, and that this should indeed be extended to those who are paralyzed and unable to live off life support. It may be that this should even be extended to any competent adult who chooses this. These are tough questions to which I have no firm answer. But the risk of slippage in this area -- which Gorsuch's book describes carefully, and which I also briefly note on pp. 1057-58 of this article -- ought not, I think, be lightly ignored. Seemingly narrow bills that have criteria that supposedly "prohibit[] the extension of assisted dying" may well lead to broader bills, or even to broader interpretations of the criteria. And that is made especially clear by the arguments of some of the bills' supporters.

Some of my students asked: Just how likely is it that I can get my article published outside a home-school journal? I did some research on recent publications by UCLA law school graduates, and I thought I'd pass it along.

I'd expect that students at some schools publish more, because of the culture of the school and the type of students the schol draws (Yale would be a likely guess here); and students at other schools publish less. But my guess is that, to the extent this shows what UCLA students can do, students at other schools can do, too, especially if they circulate their articles widely enough.

1. In the seven classes from '00 to '06, at least 29 UCLA law students published articles in other schools' journals either the year they graduated (or before), or the year after. Most of the articles published the year they graduated or earlier (22 articles) were probably circulated before the students graduated. Most of the articles published the year after (7 articles) were probably circulated right after the students graduated.

2. For the benefit of those readers who have the usual lawyer affection for arithmetic, let me mention that this is about 3 articles per year from current students, plus 1 article per year from the just-graduated.

3. A little over half the articles (17) were published in specialy journals, such as the Harvard Journal of Law and Public Policy and the Yale Human Rights & Development Law Journal, the Journal of Medicine and the Law, and the like.

4. A little under half the articles (12) were published in general-purpose journals, ranging from one article in UC Davis (top 50) and two articles in USF (second 50) down to the third tier (Cleveland State) and lower-ranked schools (Franklin Pierce, Willamette, Western States, Cal Western, and University of West L.A.).

5. This is likely an underestimate; I searched for author's notes that said something like "JD, UCLA, 2003" (though I crafted the search to be more inclusive than that) -- if an author omitted his year of graduation from the note, the article wouldn't have come up.

6. What fraction of articles that were circulated got placed? Impossible to tell, since we don't know how many people tried to get their articles published. But my sense is that if your article is good and you distribute it widely (talk to me if you'd like to know how widely), chances are that you'll get at least one acceptance; some articles get several, and you can choose the best.

7. Finally, of course use these numbers for comparison -- your mileage may differ, especially since it depends on how good your article is, something no statistical analysis can tell us.

The New York Observer reports that, if Barack Obama or Mitt Romney is elected President, he will be the first Harvard law school graduate to become President since Rutherford B. Hayes.

When I include a URL — or another long continuous chunks of text — in a footnote in Microsoft Word, the preceding line often ends up having lots of white space. The usual fix for that is to include an optional hyphen, but I don't want the URL to be hyphenated; I want it to break at a slash or a dot. At times, I've entered manual line breaks, but that's not optimal, because I don't want it to break at a fixed place; I want it to break at the place that yields the least internal white space, and that might change as the earlier lines in the footnote change, or as the article gets reformatted.

I've just stumbled on what seems like a good solution: Insert / Symbol / Special Characters / No-Width Optional Break. You can insert this special character wherever you're willing to see the long continuous chunk be broken; it's still not automatic, but it's better than the alternatives I've noticed (at least the alternatives that let me stick with Word). And if you find yourself doing this often, you can easily assign a shortcut key to this special symbol.

Oddly, Word's Help feature doesn't seem to discuss this; I had tried earlier to search for optional line break, but couldn't find anything useful. So I thought I'd pass this along for the benefit of others who might be facing the same problem I had faced in the past.

UPDATE: Commenter Tim_K points out the downside: "The solution works in terms of improving the appearance of the Word document, but when I tried it, add the special character made it so the URL no longer acted as a link to take you to the website in question. I guess you can get around this by copying and pasting the URL into you web browser, but it's far from an ideal solution. What's wanted is to improve the appearance of the Word document and have the URL function as a link." I don't find this to be much of a problem since most of my links aren't likely to be the sort of things that the typical reader will want to follow. But it may well be a downside for others; and it sure would be great if Microsoft kept this from happening, as they could easily do.

FURTHER UPDATE: Commenter Steven Joyce suggests a fix to Tim_K's problem: "Highlight the full URL (both halves), right-click and select 'Edit Hyperlink' or 'Hyperlink', and then put the correct URL (without the special character) in the 'Address' box."

A reader writes:

[The Ninth Circuit panel decision in Harper v. Poway Unified School District is indeed] not binding precedent on the Circuit because it has been vacated by the Supreme Court. [But] I think it creates what is called a "come-back" situation. If appealed (certainty) the case should be assigned to the same panel as had the brother's case. Guess what they will do. By the time the case is ready for en banc, Kelsie (the sister) will have graduated from high school. The predictability of the panel re-doing what it did is pretty high. So the precedent will be back.

Very interesting.

I blogged over the last several days about the planned philosophy lecture at Kent State — the 2007 Veroni Memorial Lecture in Philosophy and the Humanities, to be delivered by Peter French, Lincoln Chair in Ethics, and Director, Lincoln Center for Applied Ethics at Arizona State University — which was titled On Being Morally Challenged by Collective Memories, and had the following blurb:

During the ethnic cleansing in Kosovo, Serbian men described themselves as compelled to rape and murder Kosovar women and children. This felt necessity was provoked and sustained by collective memories nurtured in Serbs for seven centuries. The basic question I hope to answer is whether group members caught in the throes of collective memories should be held responsible for their actions when they "can do no other."

Here's a copy of a fax from the Serbian consulate that was sent before the lecture was called off:

CONSULATE GENERAL OF THE REPUBLIC OF SERBIA
201 E. Ohio Street, Suite 200, Chicago, IL. 60611
Tel: 312/670-6707; Fax: 312/670-6787
www.scgchicago.org

Friday, March 02, 2007

David W. Odell-Scott, Chair Philosophy Department
Kent State University
P.O. Box 5190
Kent, OH 44242-0001

VIA FACSIMILE: 330-672-4867

Dear Professor Scott;

It has come to our attention that the Philosophy Department at Kent State University is sponsoring a lecture "On Being Morally Challenged by Collective Memories" to be held on March 7, 2007 featuring Peter French as the speaker.

After reviewing the promotional materials concerning Mr. French’s speech, we are deeply disturbed and shocked. We view these remarks as racist and hateful, and feel compelled to react. My Consulate is responsible to inform the Serbian Government of such anti-Serbian rhetoric, as well as US authorities about possible legal violations.

If this lecture is allowed to proceed, we will demand from the Office of the US Attorney in Cleveland an investigation about racist remarks and demand an explanation from the State of Ohio, regarding State sponsored hate speech. We are very sorry that no one at your School recognized this shameful conduct and did not react to prevent its announcement.

Respectfully,

Desko Nikitovic
Consul General
Cc: Kent State President Lester A. Leftonfax

CONSULATE GENERAL OF THE REPUBLIC OF SERBIA
201 E. Ohio Street, Suite 200, Chicago, IL. 60611
Tel: 312/670-6707; Fax: 312/670-6787

Fortunately, in America the U.S. Attorney does not investigate allegedly racist remarks by scholars (plus, as I noted before, the allegations were based on some very thin evidence). Let's hope it stays that way, and European norms of speech restriction — whether from Serbia, France, England, or elsewhere — do not make their way to the U.S.

Chuck Colson's syndicated column is about the Miller-Jenkins v. Miller-Jenkins case. I won't repeat the details here, though you can find them here; and you can find a broad response to Colson in this Overlawyered.com post by Walter Olson.

Here, though, I wanted to focus narrowly on a specific part of Colson's argument:

The subhead in the Post article says it all: "Janet Jenkins and Lisa Miller got hitched and had a baby together." Together? Anybody who knows anything about biology knows that’s impossible. But that’s just how the courts are looking at it. As a judge in the case told Janet Jenkins’s lawyer, Janet (the lesbian partner) "without question is presumed to be the natural parent ... by the basis of the civil union." So in the court’s eyes, Isabella is the child of two women, something biologically impossible.

"Had a baby together" is impossible to "anybody who knows anything about biology" only if you think "had a baby together" must be a statement about biology. Yet the whole point of a civil union is to make a partnership through which you commit to do things together. And one of the things that people try to do together through a civil union (whether others approve of civil unions or not) is bring into the world -- or, with adoption, into their family -- a child that they commit to support together. In reliance on the mutual promises, they invest time, effort, money, and physical exertion. One is willing to invest some things and another some other things (as with a male-female marriage) precisely because they've committed to this project together.

In fact, this is precisely how a man and a woman can have a baby together even if infertility requires them to use another man's sperm. It surely is an impoverished conception of parenthood to say that it's "impossible" (or wrong) for a husband and wife to have a baby together when they together commit to raising it, and they together arrange for it to be born, but for biological reasons they have to use donated sperm.

Yet it turns out that this is the very conception of parenthood that Colson is pointing to -- later on he condemns the use of donated sperm as well:

How is it possible that laws and court procedures could have become so dangerously fantasy-based? Actually, we should not be surprised. Many modern parents have unwittingly been collaborating with the process for years. The Washington Post tells us how Judge Cohen explained it: "[C]onsider the situation of a heterosexual couple in which an infertile husband agrees for his wife to be artificially inseminated with donor sperm." In such a case, the judge stated, the husband would be presumed to have parental rights even though someone else had actually fathered the child.

It all ties together. Heterosexual couples have tacitly approved this practice of including a silent third partner in a marriage to produce a child. And then it makes it very difficult to cry foul when homosexuals do the same thing.

Isabella’s plight shows us the tragic consequences of rejecting the biblical view of marriage, which provides for one man and one woman in the union to raise the child. Sure, there are extraordinary circumstances, and adoption is possible. But the norm is the norm, and the law has always recognized the natural moral order.

Even adoption seems to be, despite his assurances, outside his vision of "the biblical view": He says it's "possible," and appears to defend it simply on the grounds that it's an "extraordinary circumstance." But surely 120,000 adopted children per year are likely to be no more "extraordinary" than the children of same-sex couples. (If 3% of the U.S. population is gay or lesbian, and if every one of them ended up in a couple and each couple yielded two children over the members' lifetimes, that too would be about 120,000 children per year.)

I strongly suspect adoptions are less "extraordinary" than births using donated sperm. And if a birth of a child who's biologically unrelated to the mother's husband is against the "biblical view of marriage," then it seems that an adoption -- especially an adoption at birth -- would be even further from that biblical view. (I realize that Colson says "the biblical view of marriage ... provides for one man and one woman in the union to raise the child," but from the sentences before and the sentences after, I take it he means for the biological father and the biological mother to raise the child, since otherwise this sentence would be completely unrelated to his faulting of heterosexuals' using donated sperm, or his discussion of adoption.)

How did this supposedly religiously motivated fixation on the child's biological relatedness to both parents come about? Does the Bible indeed somewhere condemn, explicitly or by strong implication, the use of donated sperm? I know the stories of Hagar and Tamar in the Old Testament discuss what some people do when they can't have children naturally with their spouses (because of the wife's infertility, the husband's death, or the husband's refusal to impregnate the wife); but I take it that the moral message of the stories is not necessarily clear.

Is there something elsewhere that takes such a biologically essentialist view, to the point of prohibiting the use of donated sperm, and treating adoption as grudgingly tolerated in "extraordinary" cases? (I'm not speaking just of Catholic natural law reasoning; Colson is a Protestant who, I take it, focuses much more on the words of the Bible.)

Last week I blogged about what struck me as an unjustified fracas over a forthcoming moral philosophy lecture by Prof. Peter French at Kent State University; some Serb-Americans apparently objected to it, on grounds that struck me as likely unsound.

The lecture has been called off; when I e-mailed Prof. French to ask for an explanation, he kindly responded. He told me that "Kent State wanted me to go on with the lecture and promised security at the event, but my family insisted that it was not worth it," and also passed along the following (some paragraph breaks added):

I was scheduled to give a lecture at Kent State University of March 7, 2007, as a part of the Veroni Memorial Lecture Series. The title of my lecture was to be "On Being Morally Challenged by Collective Memories." I intended to discuss how collective memories (what some have called heritage stories) can be seen as a potential source of a type of moral impairment that I call "being morally challenged."

The paper that I would have read has three parts. In the first part of the paper I distinguish between being morally incompetent and being morally challenged in terms of an account of moderate moral reasons responsiveness combined with the Frankfurt conception of volitional necessity. In the second part, I provide a sketch of different types of memory and offer an account of what collective memories are.

I conclude in the third section with an attempt to provide a convincing account of how collective memories can cause volitional necessity leading to moral challenges for some individuals in group situations. The primary point I make at the conclusion of the paper is that though collective memories may engender what Harry Frankfurt called volitional necessity in some group members and render those individuals morally challenged in certain circumstances with regard to doing the right thing, they do not convert those group members into moral incompetents with respect to whom moral responsibility assessment is inappropriate.

This all undoubtedly sounds highly philosophical and probably rather dull to most people. However, in the third section I offer a few examples of how I believe certain individuals may have been morally challenged when elements of their heritage or collective memories were used by their leaders to incite untoward actions. One of the examples I use is that of the speeches of Slobodan Milosevic that recalled the 1389 battle on the Field of Blackbirds as a way of motivating Serbs against Kosovo/Albanian Muslims. This example is discussed in two brief paragraphs of a paper that is about 20 pages long. It is in no way the focus of the paper.

Nowhere in my examples, nor anywhere else in my paper, do I make any claims about the morality of the Serbian people. However, after event organizers generated a poster with a blurb citing the Serbian/Kosovo example to announce the lecture and displayed it on the Kent State University campus and website, there arose an outcry of complaints and accusations regarding my supposed views about Serbs.

This escalated into an outrageously false (and I believe libelous) article posted on a website (www.serbianna.com) in which my views are grossly mischaracterized. This website wrongly attributes to me the claim that "Serbian people are rapist and killers because they are delusional about their history during the time they lived under the Islamic Law in Kosovo." I make no such claim. Nor do I make any of the other wild claims now attributed to me in emails and elsewhere. I do not think the Serbian people are or were delusional and I was not going to say so in the lecture. Nor do I think the Serbian people are rapists and killers (although individual Serbs have raped and murdered, as have members of every ethnic group on Earth).

I have written extensively on the complex issues of individual and collective responsibility, and I am the last person to make unsophisticated, sweeping statements about the morality of any ethnic group or to make assumptions about the morality of an individual based solely on his or her ethnicity. The website article goes on to quote Susan Ilievski, a person I have never met. She says, "This man is out of his mind. Whatever French says is a fiction or was he paid to say that, who knows." This is, of course, utter nonsense.

Ms. Ilievski has no idea what I say in the paper because I have not given it and I have not provided a copy of it to anyone at Kent State. It is most irresponsible for anyone to make incendiary claims about someone's views based solely on an advertising blurb created to excite audience interest.

Unfortunately, the audience interest that was incited was poisonous and most unsettling. I have received a large number of harassing emails from within the U.S. and from abroad, accusing me of racism, being a closet Islamist, collaborating with those who would destroy Western Civilization, and much more. I was told to expect a very unpleasant experience at Kent State should I dare to give the paper. After consultation with my family and my attorney I decided that traveling to Kent to give this somewhat technical philosophical paper in such a hostile climate (and at my age) was unwise.

Philosophical discourse is all that interests me. The utter irrationality and vituperative rhetoric of the attacks I have endured is astounding and depressing. Hearing from so many hate-filled people who have no idea of the actual philosophical points that are in my paper and clearly have no desire to engage intellectually with me made it clear that this visit would not be a worthwhile philosophical experience.

With reluctance, I decided to cancel my talk. I had hoped that my talk would provide an opportunity to engage the Kent community in an interesting discussion of a complex philosophical concept. It is astounding and tragic that a simple academic exchange could spiral into such a controversy.

Thanks to Constitutionally Correct and How Appealing for the pointer. This means that the Ninth Circuit opinion upholding the school's prohibition of the T-shirt loses its precedential value.

I'm delighted to say that Sabrina Safrin, who teaches patent law, international law, and contracts at Rutgers-Newark, will be joining us this week to discuss her new article, Chain Reaction: How Property Begets Property (forthcoming in the Notre Dame Law Review). Professor Safrin spent eight years as an attorney-adviser at the U.S. State Department Office of the Legal Adviser, where, among other things, she helped negotiate treaties and international instruments pertaining to biotechnology, biological diversity, and marine pollution.

I invited Professor Safrin because I read the Chain Reaction piece and liked it very much; here's the abstract:

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another.

The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.