The Volokh Conspiracy

This week’s National Journal poll of political bloggers started off by asking them to rank the importance of various media that the political blogger himself uses to stay informed. On both the Right and the Left, “websites/blogs” came in first. However, on the Left, daily print newspapers were second, while on the Right, they were fifth. Print magazines were third on the Left, and last on the Right. For me, the web comes first, and print newspapers (Wall St. Journal, NY Times, Denver Post, and Boulder Daily Camera) are second.

The next question was to give a grade to White House Press Secretary Robert Gibbs. The Left gave him a B-, while the Right voted for D+. I gave him a B, and explained, “He’s said some silly things, but some missteps are inevitable when one talks to the media that much. Overall, he comes across as a likable guy. The failed policies he has to defend aren’t his fault.”

The final question was “Do think it’s a good idea for struggling newspapers to become nonprofits in order to receive tax breaks?” Sixty-nine percent of the Right, but only 16 percent of the Left liked the idea. I thought it was a fine idea, as long as a particular newspaper meets the legal standards to be a non-profit: “Why not? The country is better off with daily print newspapers than without them.”

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question ““PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

Missouri v. Richard was decided earlier this week by the Missouri Supreme Court, solely on the basis of the Missouri Constitution. Missouri law, Section 571.030.1(5) punishes someone who “Possesses or discharges a firearm or projectile weapon while intoxicated.”

Richard did in fact possess a loaded handgun while intoxicated (eventually to the point of unconsciousness) by morphine and amitripyline. He threatened to kill himself with the handgun, and told his wife that if she called the police, he would make the police shoot him.

Richard argued that the statute was overbroad. The Missouri Supreme Court retorted that overbreadth can only be raised in a First Amendment context. (However, some other state courts have applied overbreadth to state constitution arms rights protections. See State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).)

In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to “actual or physical control.” So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.

The Missouri law, by the way, has an explicit exception for self-defense, and there was no claim in the Richard case that the defendant’s gun possession was for self-defense.

A concurring opinion by Judge Fischer says that the Second Amendment is incorporated via the Due Process clause, and that the Missouri statute does not violate the Second Amendment.

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.

In a recent case in Surrey, England, a man found a black bag in his garden one evening. He looked into the bag, and found that it contained a shotgun. He took the shotgun into his home, and the next day he called the police, and brought the shotgun to the police station. He was arrested for unlicensed possession of a firearm, convicted after a jury trial, and now faces a mandatory sentence of at least five years in prison.

I am asking for commenters who can point to similar cases in the U.K., United States, or elsewhere. For example, a student finds a knife on a playground at school; she picks it up and takes it directly to a teacher. She is expelled for possession of a weapon on school property. I’m not looking only for cases involving weapons.

Also fair game for inclusion are other cases in which the person’s possession of the weapon or other item was patently innocent and transitory. For example, a victim is attacked by someone with a gun. The victim snatches the gun away from the attacker. The victim is criminally prosecuted because he has a previous felony conviction, and therefore is not allowed to possess a gun.

For the cases you describe, please supply a cite, a link, or similar information. Thank you!

The cover of next week’s Newsweek features a picture of Sarah Palin, along with the headline “How do you solve a problem like Sarah?” The cover is one more example of the periodical’s positioning itself as the ideas journal for people who think that the New York Times’ in-house editorials are middle-of-road, but have too many big words. And of the magazine’s cultural disconnect from much of the United States.

To wit: “How do you solve a problem like Maria?” is an early song in The Sound of Music, which won the 1965 Academy Award for Best Picture. In the song, several nuns at an abbey in the Austrian mountains summarize the problems with the novice Maria (Julie Andrews): Maria is too physically active, athletic and outdoorsy. She is too expressive emotionally, particularly about her happiness. She is flighty, and late for everything except meals. She has a good heart, but does not listen well to advice from her elders, and she is highly self-directed: “How do you catch a cloud and pin it down?” The harsh nun, Berthe, calls Maria “a headache” and “a demon.” Newsweek’s subhead take’s Berthe’s role, calling Palin “bad news for the GOP–and everyone else too.”

The Mother Superior knows better: Maria is no bad-news demon. Rather, Maria is someone who lives the Good News, and whose talents, energy, and will-power are going to waste in the abbey. So she ships Maria off to a job outside the abbey–a job for which Maria is totally unprepared, and a job at which Maria’s predecessors have failed. After a rough start, Maria becomes a great success, due to her common sense, kind heart, wisdom, and readiness to defy convention. In the process, Maria also stands up to foreign totalitarian aggressors (winning the support of even her staunch critic Berthe), fortifies the nationalist sentiments of her country against those aggressors, and leads the people in her care to safety and freedom.

Ergo, the question “How do you solve a problem like Sarah?’ provides its own answer, at least to people who know the film from which the song comes: Make her the President of the United States.

I’m not arguing for or against Palin for President–just observing that, as is so often the case, the Palin-hating media are less clever than they think, and end up inadvertently making her stronger.

This week’s National Journal poll of political bloggers asked “Would Democrats be helped or hurt politically if Congress enacts health care reform legislation containing abortion restrictions similar to those passed by the House?” On the Left, 79% said “hurt,” while the Right was fairly closely split between “helped,” “hurt,” and “not much impact.” I voted for “hurt,” but thought it was a close call: “In pro-life districts, it’s a tremendous boon to Dems who voted for the Stupak amendment, proving to voters that the local Dems are not controlled by the party’s bicoastal pro-choice leaders. In pro-choice districts, however, Stupak’s effects on abortion coverage in private insurance may make a lot of people very unhappy. On the whole, a net loss for Dems because Stupak is a huge win for the pro-life side, which is a bad long-term sign for a party which, at the national level, is officially pro-choice.”

Question two was “In light of the off-year election results, what’s the bigger political priority for the Democratic/Republican Party right now?” Eighty-six percent of the Left said that motivating the base should be the biggest Democratic priority. Sixty-seven percent of the Right said that the biggest Republican priority should be winning independents. I volunteered the Republicans need to do both: “As C.S. Lewis once remarked about the faith vs. works debate: ‘It does seem to me like asking which blade in a pair of scissors is most necessary.’ Winning parties motivate their base and win independents — as McDonnell and Christie both did.”

Monday’s New York Times has an interesting article about the forthcoming English edition of Emmanuel Faye’s book Heidegger: The Introduction of Nazism into Philosophy in Light of the Unpublished Seminars of 1933–1935.  In brief, Faye argues that Heidegger’s pro-Nazi views were not incidental, but were at the core of his life’s work. Accordingly, suggests Faye, libraries should remove Heidegger books from the “Philosophy” section, and place them in the “History of Nazism” section. From what I know of Heidegger (he’s discussed in my forthcoming book Aiming for Liberty) his intellectual influence on the 20th century was highly pernicious. Heidegger, like Hitler, wrote books addressing the question of what it means to be a “German,” and came to similar conclusions. Both writers were verbose; Heidegger was superior in the fabrication of elaborate philosophical constructs, while inferior to his hero is writing comphrensibly. Given Heidegger’s own dedication to Hitlerism, it seems that Heidegger himself might have considered it appropriate for his books to be shelved next to Mein Kampf.

Robert Wright’s BloggingHeadsTV is often the best place on the Web for highly intelligent conversation about politics and culture. Particularly excellent is a new episode, posted today, in which Wright interviews Bruce Feiler, author of the new book America’s Prophet, Moses and the American Story. Wright is a scholar of the history of religions, so the conversation is thoughtful, challenging, and enlightening. Wright finds himself astonished, by Feiler’s thesis, but admits that upon reading the evidence, it is irrefutable. As the book’s promotional material states:

The Exodus story is America’s story. Moses is our real founding father. The pilgrims quoted his story. Franklin and Jefferson proposed he appear on the U.S. seal. Washington and Lincoln were called his incarnations. The Statue of Liberty and Superman were molded in his image. Martin Luther King, Jr., invoked him the night before he died. Ronald Reagan and Barack Obama cited him as inspiration. For four hundred years, one figure inspired more Americans than any other. His name is Moses.

I will say that Feiler’s thesis is not at all startling to some of us who have studied religious rhetoric in American history. As when in 1858 Rabbi Isaac Mayer Wise, one of the founders of Reform Judaism in America, declared  that the American Independence Day was a second Passover: “the fourth of July tells us the glorious story of the second redemption of mankind from the hands of their oppressors, the second interposition of Providence in behalf of liberty, the second era of the redemption of mankind, the second triumph of right over might, justice over arbitrary despotism, personal and legal liberty over the power of the strongest and most warlike.”

When Benjamin Franklin and Thomas Jefferson were chosen by the Continental Congress in 1776 to design a Seal of the United States, both proposed an image of the Exodus. Adams described the picture: “Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity. Motto, Rebellion to Tyrants is Obedience to God.”

Second Amendment advocates had no trouble seeing the connection between the iconic images of Moses parting the Red Sea (in the film The Ten Commandments) with an upraised staff, and NRA President Charlton Heston proclaiming liberty throughout the land while holding high the Kentucky Rifle. Regardless of whether a viewer is inspired or annoyed by the juxtaposition, it’s another example of how, even in the 21st century, the story of Moses and the Exodus continues to play an important role in American public life.

Last week, I was interviewed by Radio Free Europe’s Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here’s a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter’s weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world’s largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeni revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone.

In last week’s National Journal of political bloggers, one question asked: “If unemployment remains at roughly the current level, what impact will that have on the 2010 midterm elections?” One hundred percent of the Right, and 89 percent of the Left bloggers thought it would hurt Democrats, and most thought it would hurt them a lot. I agreed: “It’s easy to imagine the Republican campaign ads which show the Democratic charts predicting how bad unemployment would get without the stimulus — juxtaposed with how much worse unemployment actually got after the Democrats’ deficit spending spree was adopted.”

For the other question, both Left and Right reversed their positions from last June. Sixty-five percent of the Left now think it is “somewhat likely” that Congress will pass Cap & Trade. Sixty-five percent of the Right now thinks passage is “very” or “somewhat” unlikely. So both Left and Right have become more optimistic in the past few years. Objective proof that “hope” is on the rise.

I was in the minority of the Right who thought C/T somewhat likely: “The bill will see lots of ‘no’ votes from Blue Dogs and from other Democrats who represent energy-producing states. But there may be enough support from urban/suburban Republicans for something to pass.” Certainly a C/T bill that included lots of the ideas which John McCain has proposed, and which greatly cut back on the rent-sales that appear in the House-passed bill, the bill would be nearly unstoppable.

Last month in Massachusetts, my father, Jerry Kopel, received the Soviet Jewry Freedom Award from the Russian Jewish Community Foundation. He was honored along with his fellow former legislator, Tilman Bishop. (Bishop is now an elected Regent of the University of Colorado. He is a conservative Republican from Grand Junction; my father is a liberal Denver Democrat.) In 1979, my father and Bishop created the Committee to Free the Leningrad Three; these were Jewish and Christian refuseniks who had attempted to flee the Soviet Union in 1970. They were part of a group of 10 which bought all the seats on a small charter plane, and planned to overpower the pilot and escape to Scandanavia. Their plot was thwarted at the airport, before they ever boarded the plane. The group was known as the “samoletchiks”–airplane guys. By 1980, 7 of the 10 had been released due to international pressure. Five of them were part of a swap involving some captured Soviet spies; the other two had completed their prison terms. 

Thanks to the Committee to Free the Leningrand Three, the remaining three were all released by 1985.

In a recent column, my father explained some of the Committee’s unusual tactics. First, they did not adopt the standard legislative approach of merely getting a resolution adopted. A resolution is a one-time thing, but the Committee aimed for continuing pressure. Colorado legislators were invited to join the Committee, which eventually comprised 95 of Colorado’s 100 state representatives and senators. Every member was required to write personal letters, not form letters, to the Soviet authorities, and to the prisoners. Bishop (who started in the House, and then went on to a long tenure in the Senate)  made sure the Committee members kept up the writing.

More information about the samoletchiks and the campaign to free them can be found in recent articles in the Boston Globe  and in the Intermountain Jewish News.

State and local officials who want to support international human rights often have a difficult time finding ways to act effictively without running into conflicts with the federal government’s primary role in foreign relations. The Committee to Free the Leningrad Three provides a good model for constructive local action with global consequences. Today, there are many prisoners of conscience around the world who could be saved by state and local American government activism.

UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.

Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill  (by Candice  Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here.

NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like  former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law Review,  The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN “peacekeepers” in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a “right” of governments to acquire arms. This “right” could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.

This week’s National Journal poll of political bloggers asked “What will be the top two issues in the midterm elections?” Enormous majorities on both the Left and the Right picked “Economy/jobs” as the expected top issue. On the Left, “health care reform” came in second, far ahead of the third-place “deficit/big government.” The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that “deficit/government” was the choice for 2d place, with health care in third.

I wrote: “All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides.”

The second question was “On balance, does the White House’s decision to take on Fox News help or hurt President Obama?” Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: “It turns out that all those folks with ‘dissent is patriotic’ bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama’s stature is diminished in the short run, but Fox’s reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories.”

The Fat Acceptance Movement may have a new hero. Tubby Republican nominee Chris Christie is now pushing back against imperially thin Democratic Governor Jon Corzine’s campaign theme making fun of Christie’s heft. Christie criticizes Corzine for his recent, implausible, assertions that Corzine never raised the weight issue: “If you’re going to do it, at least man up and say I’m fat...Afterwards he wusses out and says ‘no, no, no. I didn’t mean that I don’t know what you’re talking about.’ Man up. If you say I’m fat, I’m fat. Let’s go. Let’s talk about it.” Asked if a governor needs to set a good example, Christie retorts, “I am setting an example...We have to spur our economy. Dunkin Donuts, International House of Pancakes, those people need to work too.”

Smart move by Christie, since his sense of humor about himself softens his prosecutorial image (which independent candidate Chris Daggett has exploited in TV commercials) as an angry guy whose solution to everything is putting somebody in prison. For the still-undecided voters (a group which tends to be ill-informed about politics), Christie’s quips show him as a guy who knows who he is, and who does not take himself overly seriously, who admits his own weaknesses, and who has a sense of humor.

Last week’s National Journal poll of political bloggers asked Left/Right bloggers “Are [Democratic/Republican] leaders doing enough to police congressional ethics enforcement in their ranks?”  On the Left, 56% said the Democrats were not doing enough, and 60% of the Right said Republicans were not doing enough. I was among the “no” votes for Republicans, writing that “They have fewer opportunities for corruption now that they’re the minority, but I don’t see any evidence of a fundamental change in self-policing.”

Question 2 asked “Could you see yourself supporting a cap-and-trade bill if it included significant incentives for nuclear energy?” On the Left, 61% said yes. On the Right, I was the only one who said yes. I reasoned, “The last 10 years of real-world climate data have shown that the professional hysterics and their predictions are wrong. However, the last 10 years have also demonstrated the growing dangers of U.S. energy dependence on dictatorships like Venezuela and Saudi Arabia. So it’s possible (but unlikely) that a C&T bill with a strong nuclear energy component might significantly reduce U.S. dependence on dictators’ oil, and therefore be worth supporting for national security reasons.” I do realize the nukes in themselves are not the answer to foreign oil dependence, since only a small percentage of our electricity comes from imported oil. But it’s still possible (albeit very unlikely) that a C&T bill could do a great deal to reduce American dependence on dictator oil.

The October 9 poll (which I didn’t post about at the time) asked, “If major health care legislation clears Congress this year, will it include a public option?” Seventy-two percent of the Left and 57% of the right said it would. I was in the majority: ““If one presumes that the bill will pass, near-unanimous support will be needed from the Dems’ left wing. They will figure out some new euphemism for the government-run program, to attempt to provide plausible deniability for moderate Dems.”

The other question “If unemployment continues to rise, should Congress pass another stimulus package?” Eighty-nine percent of the Left thought so, while 93% of the Right disagreed, including me: “The ‘stimulus’ is like a guy who is nearly broke from credit card debt deciding to cheer himself up by getting a new credit card and running up even more debt.”

That’s the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus. 

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift”  is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of  “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

 UPDATE: One disadvantage of VC’s new platform is that we can no longer award the coveted Green Border to especially good comments. Such honor is due to the commenter who brought up 5 C.F.R. sec. 2635.204(d). This is part of a regulation covering all gifts received by federal employees–not just gifts covered by the Constitution’s requirement of Congressional approval of gifts from foreign princes. The relevant portion of the regulation states that a federal employee can keep money from an achievement prize he is awarded, if the award is given regularly according to written standards. An example in the regulation is “an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

I don’t think this regulation helps Obama, although, as I explained above, the statute provides him with all he needs. First, keeping the prize money is allowed only if the prize is awarded “by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” As has been widely discussed on the Internet, the Norwegian committee is obviously trying to influence U.S. foreign policy in a particular direction, and is making the award in part to further those interests. Second, the Nobel Prize for Medicine is awarded by an institute affiliated with a Swedish university hospital.  This is very different from the Peace Prize committee, which is picked by the Norwegian Parliament. Alternatively, if the Institute counts as a Swedish government agent because the Swedish government owns the hospital (I don’t know if they do), then the example in the regulation is wrong. A regulation cannot over-ride a statute or the Constitution. The Constitution requires congressional permission; the statute provides congressional permission in certain circumstances. The executive branch, by writing a regulation for itself, cannot expand the scope of the congressional permission.

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutrary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

This spring I will be adjunct teaching at Denver University, Sturm College of Law. The course is “Advanced Topics in Constitutional Law: Fourteenth and Second Amendments.” The course will be mainly 14th Amendment, plus some Second Amendment (which is happens to be a good topic with which to study 14th Amendment original intent/meaning and incorporation), plus shorter treatment of the rights in Article I, sections 9–10; Article IV Privileges & Immunities, 9th Amendment, and 13th Amendment. The course is for second and third year students, who have already had a 1st-year constitutional law class, which was mostly about constitutional structure (commerce clause, separation of powers, etc.). One textbook will be Gun Control & Gun Rights, which I co-authored for NYU Press in 1999. For the main casebook, I am undecided, but leaning strongly towards Randy Barnett’s. Please supply comments about Con Law textbooks which you have used, and their various virtues and flaws. Of course I am especially interested in the pro/con user experience for the Barnett book.

That’s the title of my new book, scheduled for publication December 4. It’s now available for pre-order on Amazon.com and Barnes & Noble. In an 11-minute podcast on iVoices.org, Jon Caldara and I discuss the book. It’s a collection of essays on firearms law and policy, and many other liberty issues and heroes. Topics are as old as ancient Israel and Rome, and as new as the United Nations gun control efforts and post-post-modernism.

An e-mail from KnifeRights.com reports that the “Senate has passed the conference report for the fiscal year 2010 Homeland Security Appropriations Bill with our amendment to the Federal Switchblade Act intact.” The bill now goes to President Obama for his expected signature. The bill makes technical changes in the definitions of the Federal Switchblade Act. In particular, under the revised statute, a “switchblade” is not: “a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.”

Earlier this year, the Customs Bureau had proposed revising several of its previous rulings; the effect would have been to bring a very large percentage of folding knives under the Switchblade Act. Knife Rights–with strong assistance from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) and from the National Rifle Association–led a public mobilization which garnered widespread, bi-partisan congressional support. At first, the citizen activism resulted in Customs halting its proposed regulatory change. Because the Switchblade Act’s original langauge is very broad, Knife Rights then worked for a permanent resolution to the problem, by clarifying the statute.

A citizen group with a shoestring budget, Knife Rights was founded in 2006. Today’s action is an impressive accomplishment for such a new organization.

This week´s National Journal poll of leading political bloggers had three questions. In the first, Left bloggers were asked “on health care reform, what outcome would most benefit Democrats in the 2010 midterms?” Right bloggers were asked the same question about Republicans. Nobody picked the Baucus bill as likely to lead to the best political outcome for one party or the other. The vast majority on the Left said that something like the House Committee bills would most benefit Democrats. A slender majority on the Right said that the passing nothing would most benefit Republicans.  I disagreed, and wrote, “The worse the better, from a purely political viewpoint; so passage of something like HR 3200 would be best for Republicans in 2010. But for the physical and fiscal health of the American people, the alternative approaches proposed by Cato and the Independence Institute would be far better.”

The second question asked Left bloggers how worried they are that Democrats are alienating independents. Right bloggers were asked the same question about Republicans. The Left was more worried about this than the Right. This made sense to me, as I wrote ““The national Democrats are alienating independents so fast that the Republicans can’t keep up.”

The final question aksed “On balance, does winning the Nobel Peace Prize help or hurt President Obama’s image at home?” Almost all the Left thought it helped, and most all the Right thought it hurt. I agreed with the latter: “Even the strong Obama supporters who I’ve talked to think the prize was ridiculous. For swing voters, it highlights Obama’s rhetoric/achievement gap. The principle that good intentions and sincere effort are good enough for a Nobel prize suggests that Sarah Palin’s autobiography should win her the Nobel Prize in Literature.”

 So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson’s comparisons to Roe are accurate, and that Heller is no more of an “activist” decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virignia Journal of Law and Politics, is now available on SSRN.

The seven deadly sins are lust, gluttony, greed, sloth, wrath, envy, and pride. Numbers one and three have felled many politicans in recent memory. But in the New Jersey governor’s race, #2 appears to be affecting the race. A recent ad by incumbent Democratic Governor Jon Corzine accuses Republican challenger Chris Christie of “throwing his weight around” by using his position as U.S. Attorney to escape punishment for dangerous driving. The ad’s wording, along with the photos of Christie, is an obvious double-entendre about Christie’s heft. The political website 538 surveys all current Governors for their fatness, with accompanying pictures. A new poll from Public Policy Polling find that 4% of New Jersey voters are more likely to vote for Christie because of his weight, while 19% are less likely. Notably, among that 19%, the majority are not current Corzine supporters.

So what do you think? Is it legitimate to consider a candidate’s enormous weight? Only if the weight is a result of sin #2, rather than of some medical condition? Is it more important, less important, or equally important as any of the other deadly sins? Is Jon Corzine the right guy to be raising questions about dangerous driving?

New Jersey, by the way, has the 8th-lowest state obesity rate in the U.S., according to CalorieLab. In the Colorado, which has the lowest national rate, in four decades that I have been following Colorado politics, I cannot remember any candidate as heavy as Christie winning any statewide office. Maybe somebody can point out a Board of Regents election in 1970, but in Colorado, Christie’s size would definitely be a political disadvantage. Although, personally, I think that Christie’s much bigger disadvantage is that he has run an extremely vague campaign, hoping to win mainly on the strength of not being Jon Corzine. As the PPP poll shows, being “not Corzine” is a defnite advantage in New Jersey, but perhaps not sufficient in itself.

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach.

In a new podcast from iVoices.org, I explain McDonald v. Chicago to Independence Institute President Jon Caldara. This is an 11 minute audio, which presumes that the listener is entirely new to the whole idea of incorporation. If you’ve got much more time on your hands, here’s an 86 minute video of my presentation on essentially the same subject in early September to the Triple Nine Society. That presentation too presumes no prior knowledge of the subject, but it spends a long time taking setting out the background, from Barron v. Baltimore, to Reconstruction, to substantive due process, to the present. Sophisticated watchers will note that I mistakenly said “Privileges and Immunities” sometimes when I should have said “Privileges or Immunities.” And I usually referred to the impending Supreme Court case as NRA v. Chicago, expecting that that Court would grant cert. in both NRA v. Chicago and McDonald v. Chicago, and the that popular name for the consolidated cases would probably be the former. I was wrong, as the Court granted cert. in McDonald only, and has made no decision in NRA, perhaps keeping that case in reserve in case some unexpected problem developed with McDonald. The very beginning of the video is cut, so it opens a minute or two into the presentation.

In this week’s National Journal poll, the political bloggers were asked to grade the Congressional leadership. Left-leaning bloggers were asked to grade the Democrats, and Right-leaners were asked the grade the Republicans. The Left gave the Democrats a C. The Right gave the Republicans a C+. I gave the Republicans a B, and wrote “Doing a solid job opposing Obama’s out-of-control deficit spending and his attempts to impose federal control on matters that are constitutionally the decisions of individuals or the states. If the Republicans had been similarly firm with Bush’s over-spending and over-federalization, there might be many more of them in Congress today.”

Question two asked, “On balance, would sending more troops to Afghanistan be a political plus or minus for President Obama?” Sixty-five percent of the Right, but only 15 percent of the Left thought it would be a political plus. I voted “plus,” and wrote “In the long term, for both the president’s political standing and for America’s security, victory in Afghanistan is a large plus, and defeat is a disastrous minus.”

The website for all the Chicago case filings is here. For 19th century history, Stephen Halbrook is by far the most important scholar. His articles include: The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, Northern Kentucky Law Review (2002); Personal Security, Personal Liberty, and The Constitutional Right to Bear Arms: Visions of the Framers of the Fourteenth Amendment, Seton Hall Constitutional Journal (1995); The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, University of Detroit Mercy Law Review (1999); and (co-authored with Cynthia Leonardatos and me), Miller versus Texas: Plice Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century–and Today, Journal of Law and Policy (2001).

The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.

An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and  safety class.  Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”

In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.

There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)

The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding.  The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.

Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.

Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.

Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accomodate their twin desires for “no guns” and “no signs” and  that this accomodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.

One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred.   In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.

Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Therevada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.

The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life.   The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.

Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.

Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.

None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.

Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.

Update: In response to various thoughtful comments...Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL. 

Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5–73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied togethether by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.

That’s the topic of a lunchtime symposium at Denver University, Sturm College of Law, on Wednesday, Sept. 30. Details here. Presenters will be Professors Alan Chen,  Sam Kamin, and me. Kamin is the author of, inter alia, How the Blogs Saved Law School: Why a Diversity of Voices Will Undermine the U.S. News Rankings. The symposium is the first public event for the DU Law Review’s on-line supplement, DUProcess; each of the speakers will write a short item about blogs and academia for DUProcess.

This week’s National Journal poll of political bloggers asked “What is the most likely outcome of President Obama’s health care reform initiative?” Ninety-three percent of the Left and 82 percent of the Right expected either “major” or “scaled back” legislation to be enacted in 2009. The Left was roughly split between major and scaled back. I was part of the only 12% on the Right who expect some major. I wrote: “‘Scaled back’ in the sense of no public option. The legislation will still impose huge, and mostly harmful, changes on American health care.”

The second question asked for a grade on President Obama’s foreign policy so far. The Left gave him a B, while the Right awarded a D-.  I voted for D, and explained: “From Poland to Israel to Iran to Honduras, the President has made it clear that it is safer to be America’s enemy than its friend. His crackdown on the pro-democracy government in Honduras for obeying the Honduran Constitution, and his active support for Zelaya, who is trying to become another Castro/Chavez, is despicable. Obama is much more popular than Bush among Belgians and many other Western Europeans, but Obama has been unable to translate that popularity into any results for American diplomacy.”

[Note to commenters: It appears to me that comments have to be specifically approved before they become visible. There are several comments which I have “approved”, but which are not displaying. I don’t know what the problem is. Presumably we eventually figure out how to use WordPress. ]

My father Jerry Kopel served 22 years in the Colorado House of Representatives. He represented part of northeast Denver, as a Democrat. Among the posts he held were Judiciary Committee Chairman and Assistant Minority Leader. (His website is here.) He did read every bill before voting on it. Sometimes he was the only legislator who did so; at other times during his tenure, there were a few others who did so, including Republican Tim Foster.

For 18 of the 22 years, he was a member of the minority party. By actually knowing what was in the bills, he was able to offer amendments to improve the bills, take out over-reaching provisions, and so on. More importantly, because he knew what the bills contained, he was not dependent on lobbyists to describe the bills to him. This was particularly important if the lobbying power on one side of a bill was very lopsided.

For example, in 1990 a bill to significantly expand Colorado’s already-bad civil forfeiture laws was introduced. It passed the House Judiciary Committee 12–1. (Although my father served for many years on the Judiciary Committee, by that time he had switched to the Business Affairs Committee.) The weekend before it was due to come up on the floor of the House for a vote, he read the forfeiture bill. Speaking on the floor of the House, he showed the legislators that the bill was far more onerous than its lobbyists had claimed. The bill was defeated by a solid bi-partisan majority.

The Colorado Constitution requires that each bill shall only concern a single subject, which shall be clearly expressed in the title. This provision is sometimes stretched to the limit (and beyond) with broad titles such as “Concerning criminal justice” (the typical title for the District Attorneys’ annual omnibus wish list). Even so, the single subject rule does help make legislation more comprehensible for citizen legislators.

One other data point on reading bills: When the NAFTA legislation was moving through Congress, Ralph Nader challenged the Senators and Representatives to read the bill, because, Nader said, reading it would change their minds. Colorado Republican Senator Hank Brown responded by reading the massive bill. As a result, he said, he changed his mind, and voted against it.

The Independence Institute, where I work, is a think tank that speaks on a wide variety of issues. In 2005, we produced extensive research and public information about Colorado referenda C and D. (C was the largest tax increase in state history, and D was a debt increase. C passed and D was defeated.) The Institute was harassed by a complaint filed by one of the proponents, which automatically triggered an administrative hearing under Colorado’s very restrictive campaign finance laws. The Independence Institute ultimately prevailed, but only at the cost of a major distraction of time and money shortly before what turned out to be a close election. The Institute for Justice (based in D.C.) has filed a First and Fourteenth Amendment challenge to the Colorado law. The questions presented are:

1. Whether the First and Fourteenth Amendments forbid Colorado from imposing registration,
administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose. 

2. Whether Colorado’s disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association. 

The IJ argues that the Colorado Court of Appeals ruling regarding both items are contrary to the U.S. Supreme Court’s precedents. The cert. petition is here, and case background is here. The brief of the Colorado Secretary of State is due October 2.

That’s the topic of a recent article I wrote for America’s 1st Freedom, one of the NRA magazines. I argue that if “living Constitution” means “shared and evolving beliefs about rights and powers” rather than “the whim of the particular judge,” then the argument for a robust Second Amendment under living constitutionalism is very strong.

StrategyPage, which is always one of the best websites for information on military activities around the world, reports on the terrorist war going in southern Thailand:

The Moslem south is turning into the Wild West. There are more guns per capita among the two million southerners, than anywhere else in the country. The 20 percent of the southerners who are not Moslem are particularly well armed, with shotguns, rifles, pistols and even some automatic weapons. Most of the guns carried by non-Moslems are legal, for defense against Islamic terrorists. But many Moslems have legal weapons as well, also for defense against Islamic radicals (who are increasingly violent against Moslems they deem disloyal.) The police are slowly winning, as they have done in the past. But Islamic radicalism is popular among many of the young men, so the violence will continue for a while, despite the opposition of most Thai Moslems. Thus violence has been increasing in the south, with 27 bombings and eight arson attacks in the past month. In that period, there were a hundred terrorist attacks, which left 51 dead and 83 wounded. 

This week, the National Journal poll of political bloggers asked a bonus question, about which “columnists, bloggers and television or radio commentators most helped to shape their opinion or worldview.” For right-leaning bloggers, the top five were, in order: Charles Krauthammer, Rush Limbaugh, Mark Steyn, Jonah Goldberg, and Eugene Volokh (!). All hail the Master of the Conspiracy.

On the left, the winners were Paul Krugman, Rachel Maddow, Frank Rich, Bill Moyers, and
Digby.

As for the regular questions, the first was “How much will Democrats be helped or hurt in the midterm elections if Congress doesn’t pass major health care reform legislation?” My answer was “Helped a lot.” Over half the Right, but only 6% of the Left, thought that Democrats would be helped even a little.

My answer focused not on Democrats in general, but Democrats in swing districts: “There are plenty of reforms which would cost little and give people more choices — such as allowing interstate competition in health insurance, or giving Medicare/Medicaid/etc. recipients the option of receiving vouchers to use as they see fit. These reforms would probably be supported by a broad spectrum of voters. However, if ‘reform’ is defined as federal micromanagement of private insurance, and greater federal intrusion into personal health care choices, then ‘reform’ will probably be perilous for Democrats in purple or red districts.”


The second regular question “How closely should the Republican Party align itself with the Tea Party movement?” A majority of both the Left and the Right voted for at least “somewhat closely.” I was among the 50% of the Right who voted for “very closely.” As I explained, I would have said the same thing about the Democrats: “The Republicans — and the Democrats — should crack down on the institutionalized corruption in their own party, and should work hard to balance the budget, end the kleptocratic redistribution of wealth from taxpayers to politically favored businesses, and sharply reduce federal meddling in people’s personal lives. Whichever party does that will earn the support of the Tea Party activists, and the gratitude of generations to come.”

Over at at the CBS News blog site, Declan McCullagh has a new article on the constitutionality of gun registration. He has input from Volokh, Kopel (we disagree), and many others.

Also in relation to a topic that I blogged about yesterday, my iVoices.org podcast on guns at presidential speeches is now on-line.

On the one hand, I think that the some folks in the MSM are being self-indulgently paranoid in mis-interpreting these legal displays as threats. And some media have been even worse, in trying to impose a racial narrative on the whole thing.

On the other hand, as I eleboate in the podcast, I think that this form of protest is probably harmful to the Second Amendment cause. It’s sort of a Second Amendment version of the gay rights people chanting “We’re here, we’re queer. Get used to it.” This kind of self-expressive demonstration can sometimes be helpful for a cause, and sometimes harmful, depending on the context. In the context of a presidental visit, I think it is harmful.