The Volokh Conspiracy

Microsoft Outlook has worked well for me on somecomputers, but has always been troublesome on one of them. I tried upgrading to the Outlook 2010 beta, and that’s been a horror story. Accordingly, I humbly solict recommendations about an e-mail software program for accessing several POP accounts. Thanks.

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

One of the foremost attorneys in China, Gao Zisheng believed in the rule of law, and began to try to use the law to protect human rights. Senator Byron Dorgan (D-N.D.) describes what happened next:

He wrote an open letter to the United States Congress asking us to pay some attention to the lack of human rights that existed in China. For writing an open letter to members of the United States Congress in 2007, Gao Zhisheng, one of the most distinguished human rights — noted and distinguished human rights lawyers in China, was imprisoned for 58 days and brutally tortured.

. . . Mr. Gao Zhisheng has represented some of the most vulnerable people in China. They include persecuted Christians, coal miners and others. He always believed in the power of law; using the law to battle corruption, to overturn illegal property seizures, to expose police abuses, to defend religious freedom. He’s a devout Christian. He fought to protect those who engage in peaceful spiritual and religious practice in China.

And in 2005, they took away his license to practice law, closed his law practice. As I said, in 2007, they arrested him, threw him in prison and tortured him. Eventually he was released and brought back home and placed under police surveillance at home. The surveillance proved almost harsher than prison. In fact, a member of the communist police moved into their living room, prevented his daughter from going to school; his 16-year-old daughter barred from attending schools. 24-hour surveillance.

One year ago, on February 4, 2009, Gao Zisheng was again seized by the Chinese government. No one except his Chinese captors knew whether he was dead or alive. Finally, after continuing international pressure from citizens and free governments, the Chinese apparently leaked word in January to an Australian newspaper that he is still alive.

Those readers who know their English legal history know the stories of the great lawyers during the Tudor and Stuart reigns, who used the law to challenge the abuses of the monarchs. Those readers know the debt that every free American owes to those lawyers, who sacrificed so much–and sometimes their lives–to establish the rule of law. During the reigns of the Tudors and Stuarts, the friends of a courageous lawyer who had been unlawfully imprisoned could resort to the Great Writ, the writ of habeas corpus, to secure a judicial hearing on his detention under the law.

There is no writ of habeas corpus in China, nor are there most of the other civil rights guarantees which are characteristic of a civilized nation with a free government. And so Gao Zisheng’s writ of habeas corpus will not be issued by a Chinese court, but its moral equivalent can be issued by the free people of the world: commanding that the body of Gao Zisheng, in the Chinese government’s custody detained, as it is said, together with the day and cause of his caption and detention, be safely brought forth. If you would like to sign a petition to free Gao Zisheng, or contact your elected officials to urge them to press for his freedom, or take other steps, click here.

Last week’s National Journal poll of political bloggers asked “What’s the most likely outcome this year of President Obama’s health care reform initiative?” The plurality choice on the Left, and the majority choice on the Right, was “Scaled-back legislation will be enacted.” I agreed: “Remember, even after the defeat of Hillarycare, many of its sub-elements were later enacted even by Republican Congresses. While time ran out on Hillarycare in the fall of 1994, this year the Obamacare supporters have nearly a year left to get something done.”

The second question asked about the political effects of the Citizens United decision. Seventy percent of the Left thought it would help Republicans a lot. Only 6 percent on the Right thought the same, while another 33 percent thought it would help a little. The leading choice on the Right was “not much impact.” That was my view, based on empirical experience: “Based on the experience of about half of the states, which never restricted the free speech rights of people in corporations, it’s hard to see much of a partisan impact from respecting the First Amendment.”

“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).

Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.

Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.

Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908). 

As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.

Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.

This week’s National Journal poll of political bloggers asked “Which of these pieces of legislation, if enacted, would help the Democrats’ political prospects in the midterm elections?” Bloggers could choose more than one. The leading choice for both Left and Right bloggers was “job creation.” The only other items which got more than 50% from either group of voters was deficit reduction (from the Right), and health care and financial industry reform (from the Left). I thought that most of the available choices would be helpful for the Democrats, if done properly: ““Cap-and-trade would be a political disaster. Taxing banks in general (rather than dealing with the subset that helped cause the meltdown) would be of little benefit. Greatly reducing the deficit now (as opposed to promising to reduce it later) would be enormously helpful. The financial/health/immigration/job items could all be helpful, but only if they are done in a fiscally responsible way, do not reward illegal aliens, and are moderate enough to pick up some significant GOP support.”

The second question was “Given the outcome of the Massachusetts Senate race, what would be best politically for [Democrats/Republicans] on health care reform?” Pluralities on the Left (for Democrats) and the Right (for Republicans) thought that House passage of the Senate bill would be the best political outcome. My view: “Politically speaking, the worse the better — passage of the Senate bill would be great, and passage of the House bill even better. For the good of the nation, however, it’s better to start over — and for the starting points to be allowing the purchase of insurance across state lines, ending the tax code’s bias for employer-provided insurance, and moving to a true insurance system, in which customers pay up front for routine costs, with insurance in reserve for extraordinary costs.”

Get out and knock on doors. My father’s latest column explains why, based on his own experience as a candidate (with an 11–2 election record).  Six months of door-knocking–every two years–helped him far outperform his party, and win some tough elections.

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

Austin Gun Rights Examiner Howard Nemerov once again shows why he is one of the best journalists writing on the gun issue. His latest column debunks an Internet rumor that the BATFE forced a Texas gun show to allow sales only by federally licensed firearms dealers.

Cardozo De Novo, the online companion to the Carodozo Law Review, has a symposium issue on firearms law and policy, with a focus on McDonald v. Chicago. Articles include The Second Amendment in the Living Constitution, by me; a critique of the Stevens dissent in Heller, by David Hardy; and a proposal by Michael Anthony Lawrence that all restrictions on liberty be judged according to a “reasonable time, place, and manner” standard.

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

From a segment on the Russian station for Radio Liberty. (Transcript, plus audio link.) For those of you who don’t read Russian, the short explanation is: The desire of voters to send a message of their disapproval of George Bush is considerably less significant than it was in 2006. Generally speaking, American prefer divided government.

This Monday, Jan. 25, at the University of Colorado at Boulder. Jonathan Rauch (National Journal, The Atlantic, Brookings) vs. Maggie Gallagher (National Organization for Marriage). Two outstanding, very articulate, intellectually rigorous advocates for their respective points of view.

Reports a new poll for Politico, conducted entirely on Sunday night. Dorothy Rabinowitz and Ann Coulter have both explained why Coakley’s role in the Amirault case–involving the persecution and long-term imprisonment of plainly innocent people, reveal her to be utterly unfit to serve in any public office. That Coakley is now plainly lying about Scott Brown and rape is further proof of a character that appears to be remarkably scurrilous.

Over the past few weeks, there has been a lot of concern in some quarters about President Obama’s Executive Order extending certain legal immunities to Interpol. These concerns are misplaced. I am currently writing a research paper on Interpol, which will cover the immunities, and many other issues. In the meantime, some preliminary clarifications:

Interpol has no authority to make arrests or seize property. Interpol is purely an organization for data exchange and analysis. Interpol employees in the United States (or anywhere else) have no authority to conduct any activities except as allowed by the host government. The Obama Executive Order adds nothing to Interpol’s non-existent law enforcement authority.

Interpol’s entire US presence consists of a five-person office in New York City for liaison with the United Nations. Under the Obama order, the premises and documents of this NYC office are absolutely immune from search and seizure. Pursuant to the International Organizations Immunities Act, passed by Congress in at the time the United Nations was being set up, seventy other international organizations in the US have immunities identical to those now possessed by Interpol. The presence of the UN was obviously going to lead to the establishment of US offices for many international organizations, and Congress want to regularize the procedures and immunities for such organizations.

Unlike standard international organizations, Interpol was not created by a treaty, and its membership consist of police agencies, not nations per se. So one could make the legal argument that Interpol is not an international organization. However, both the United Nations and the United States have taken the position that Interpol qualifies as an international organization.

Interpol requested the full set of IOIA immunities in 2005. In 2008, the US State Department approved the request, but the White House did not get around to signing the Executive Order. It obviously was not a priority for anyone, nor should such a minor issue have been a priority.

So why did President Reagan, in 1983, grant Interpol some but not all of the available immunities? Some explanation of Interpol’s structure will help here. Interpol is headquartered in Lyon, France. Today it has over 600 employees, consisting of permanent staff, as well as employees from many different national law enforcement organizations who are “seconded” (loaned) to Interpol for a few years. Every one of the 188 nations which participates in Interpol has a “National Central Bureau” (NCB) which coordinates interaction with Interpol. The NCB offices are located in the home country, and they are staffed by employees of the home country, not by Interpol employees. The United States has the largest NCB, consisting of approximately 80 employees in Washington, D.C., plus an auxiliary NCB in San Juan. The NCB is responsible for transmitting the data which the US chooses to provide to Interpol, and thereby make accessible to the NCBs of other countries. Such data include the identification numbers of lost or stolen US passports, fingerprints or DNA for some criminals, and so on.

The NCB in the United States is not an international organization. It is a part of the US Department of Justice, and is subject to precisely the same laws as any other part of the Department of Justice. The NCB staff interacts with Interpol, but they are employees of the federal government, not of Interpol. Neither the Reagan nor the Obama Executive Orders apply to the NCB offices, nor could they.

As of 1983, Interpol had no staff or offices in the United States. However, a 1981 D.C. Circuit decision, Steinberg v. International Criminal Police Organization, 672 F.2d 927, held that Interpol could be sued in federal courts, because Interpol’s interaction with the US NCB created sufficient US contacts for a US court to assert long-arm jurisdiction.  The Circuit’s decision was written by the recently-appointed Judge Ruth Bader Ginsburg. Steinberg pleaded a very strong case for defamation:

Steinberg’s complaint identifies an Interpol document, titled “Blue International Notification 500/59-A3674,” describing him as a wanted international criminal who used the alias “Mark Moscowitz.” Interpol widely communicated the Notification, Steinberg alleges, to its liaisons, among them, the United States National Central Bureau (USNCB), now located in the Department of Justice, this country’s liaison with Interpol. In the summer of 1975, on learning of the document and Interpol’s transmission of it to liaisons, Steinberg asserts, he notified Interpol and twice offered proof that the Notification was erroneous. Despite the proof he offered, Steinberg further states, Interpol continued to publish the Notification and other statements associating Steinberg with “Mark Moscowitz.” It did so, according to Steinberg, until late July 1976, when Interpol finally conceded Leon Steinberg was not “Mark Moscowitz.” Steinberg seeks general and punitive damages for the substantial injury he alleges he has suffered as a result of the Blue International Notification.

Now vulnerable to US lawsuits, Interpol asked the Reagan administration to grant it IOIA protection. The Reagan administration at the time was beginning to vastly amplify the US relationship with Interpol. The consequences, over the long term, were a substantial increase in US contributions to Interpol, the US displacing France as the most influential nation within Interpol, and Interpol taking a major interest in counter-terrorism. Given the Reagan determination to work more with Interpol, it is not surprising that the administration granted Interpol’s request for IOIA immunity from civil lawsuits.

At the advice of the Department of Justice, the Reagan Executive Order did not grant complete IOIA immunities, because they were unnecessary. Interpol had no office in the US, and therefore had no need for IOIA’s protections of international organization property and files. The Obama Order simply recognizes changed circumstances; now that Interpol has a small US office, it is appropriate that Interpol have the standard immunities for international organization offices.

As I will detail in my research paper, I believe that the Reagan-granted civil lawsuit immunity should be partially rescinded, and, if necessary, Congress should revise the IOIA to allow for grants of only partial immunity from civil suits. Interpol is a much more competent organization than it was in 1975, when it allegedly defamed Steinberg. Nevertheless, Interpol does sometimes disseminate potential defamatory information without sufficient caution. First of all, Interpol distributes “diffusions.”  A diffusion is a document from one nation that a particular person is wanted for a particular crime in that nation. Diffusions are not reviewed for factual accuracy by Interpol staff, and they are not formally endorsed by Interpol. However, Interpol’s global distribution of the diffusions could, at least arguably, constitute participation in defamation, particularly when the diffusion is created by a nation with a notoriously corrupt and dishonest law enforcement system.

Interpol’s official Notices (such as the “Blue Notice” on Steinberg) are given a higher standard of care. (A Notice is not an “international arrest warrant.” A Red Notice is merely information that a person is sought by a particular country, for a particular crime, and the country will extradite him if given the opportunity. A Blue Notice is a request to collect additional information about a person in relation to a criminal matter.) Nevertheless, at least occasionally, defamatory Notices are  distributed. Most notoriously, Interpol distributed three Red Notices from Kazakhstan containing false claims that some political opponents of the dictatorship had committed tax crimes. Although Interpol staff eventually opposed the Kazakhstan Red Notices, the issue was decided by the Interpol General Assembly (Interpol’s governing body), which narrowly voted in favor of the Red Notices. Perhaps if Interpol had faced a potential lawsuit for knowingly distributing defamatory information, the General Assembly would have voted differently.

However, the big topic of concern in the past several weeks has not been “Interpol can get away with defamation!!!!” The defamation immunity problem has existed for 27 years. The current concerns about the Obama Executive Order are about the dangers of unaccountable international police operating in the United States. These concerns are without merit. Interpol staff do not even carry guns, and they certainly do not engage in policing in the United States.

This week’s National Journal poll of political bloggers asked for a prediction about how many House seats the Democrats would lose in the November 2010 elections. Significantly, not one of the bloggers predicted a large enough loss to change control of the chamber.  On the Right, 45% predicted a loss of 31–40 seats, while the rest predicted lower. On the Left, the median was in the 11–20 range.

The second question asked for a grade on President Obama’s economic performance. The Left gave him a C-, while the Right awarded a D-. I voted for F: “Taking the irresponsible Bush deficits and making them much, much worse. Spending vast amounts of the ‘stimulus’ on wasteful pork, giveaways and political payoffs rather than infrastructure or other useful projects. Continuing the Bush TARP program of transferring wealth from productive working people to the bankers who helped cause the meltdown. And turning the auto industry into a federal welfare program.”

The Examiner on-line newspapers have provided forum for a bevy of authors who write on Second Amendment and firearms policy issues. There are plenty of good writers among them, but my favorite is Howard Nemerov, who writes for the Austin Examiner. Howard´s columns are often data-rich (such as his latest piece, on the failures of police protection in Chicago). He is no mere commentator, but instead works hard to research the facts and advance the story. Among his recent articles are an admirably calm piece on the Interpol controversy, and an  examination of international data in which shows that there is no relationship  between gun ownership rates and suicide rates.  Howard is also my co-author of the Texas Review of Law & Politics article, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations.

This week’s National Journal poll of asked right-leaning bloggers to list the 5 most-likely Republican presidential nominees in 2012. Left-leaning bloggers were asked to name which Republican would be the strongest candidate. Mitt Romney won both races handily. I voted for Romney as most likely, but don’t think he would be the most likely candidate to win the general election: “The Republican lower tiers (e.g., Thune) might be much stronger in a general election than would be the better-known possibilities (e.g., Romney, Palin, Huckabee, Gingrich).”

Josh Blackman’s thoughtful analysis here. The brief  is here.

The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. “Cornhusker kickback” is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).

FoxNews reports that the Liberty Legal Institute and the Fund for Personal Liberty/10th Amendment Foundation are contemplating constitutional lawsuits against certain provisions of Obamacare. As various elected officials and public interest organizations consider their own litigation strategies, it would be helpful for them to know about how well the aforesaid organizations might present a constitutional case. Accordingly, I solicit comments from people who are familiar with the constitutional litigation track records of these two organizations. Do not offer comments about your views of the merits of the constitutional case about Obamacare. Please confine yourself to fact-based discussion of the strengths and weakness of LLI and FPL as constitutional law firms.

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been plenty of interesting scholarship recently on Privileges or Immunities. Here’s a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading–including in Supreme Court opinions–was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH’s most egregious error was in nullifying the principle of “paramount national citizenship” which lay at the heart of the ideology of the 14th Amendment’s advocates. Revitalizing the PI clause should not lead to the abandonment of “substantive due process.” This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of “due process” substantively prohibited certain arbitrary acts by legislatures (e.g., giving A’s property to B) even if the proper procedures were followed.

Kenneth A. Klukowski,  Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195 (2009). Argues that SH should be affirmed, and that the Second Amendment can be protected against state/local infringement by the PI clause, because the Amendment fits under SH’s restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of 2d Amendment rights, since the former applies only to citizens. Warns that overruling SH could provide a future Court with too many opportunities to fabricate novel “rights” out of PI.

Ilya Shapiro & Joshua Blackman. Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, Georgetown J.L. & Pol’y (forthcoming). Addresses the concerns raised about a revived PI clause–in particular that the “Constitution in 2020″ professors are eager to use PI to create positive rights to various forms of government spending, and to use PI to import the p.c. “norms” which are supposedly found in international law. Shapiro and Blackman argue that the current Court should be proactive, and should use McDonald to write a strong opinion which declares that PI protects the same set of rights as are protected in Washington v. Glucksberg (traditional rights deeply embedded in American history). Under the Glucksberg standard, the right to arms and the right to self-defense would clearly be protected by PI. Notably, the authors contend that the term “incorporation” is incorrect. The PI clause directly protects various rights, whether or not those rights are enumerated in the Bill of Rights. Thus, a proper reading of PI would require states to respect the arms rights and self-defense rights of citizens (even if the Second Amendment had never been written) because those rights meet the Glucksberg test. 

Klukowski and his colleague Ken Blackwell have been carrying on a lively op-ed and Internet debate with Shapiro/Blackman. A long blog post today by Shapiro, on Cato@Liberty, contains links to both sides of the discussion.

In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)

In early January, I will be doing a podcast interview of Shapiro. As many readers know, Shapiro is Cato’s Senior Fellow in Constitutional Studies, and is Editor-in-Chief of annual Cato Supreme Court Review; I am an Associate Policy Analyst with Cato. Commenters are welcome to suggest questions for the podcast. It would be appreciated if every would-be commenter read at least one of the aforesaid articles before commenting. This will help the comments section advance the discussion, rather than merely retreading familiar arguments.

On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a “future, wiser court.”  As an example, she pointed to the dissent in District of Columbia v. Heller.

If any VC readers attended the luncheon, any details or clarifications would be welcome.

That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.

Here’s the abstract for my Cardozo article:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

For discussion of Judge Benjamin Cardozo’s viewpoint on  self-defense, see pages 15–17 of the California and Nevada district attorneys’ amicus brief in McDonald.

This week’s National Journal poll of political bloggers asked for a grade for President Obama’s foreign policy. The average grade from the Left was a C. From the Right, it was a D-. I gave him the highest grade of any voter, which was a B, and explained: “Finally did the right thing on the Afghanistan surge. His most important speech to the world — in Oslo — was magnificent. Badly mishandled Honduras at the start by opposing the lawful removal of Zelaya, but no long-term harm was done.” Next year’s grade might be much lower, in that the shared Clinton-Bush-Obama policy of all talk and no action about Iran’s nuclear weapons development may get to the terminal point of Iran acquiring nuclear weapons.

Question 2 asked the Left “How much is the Democratic Party to blame for Congress’ low standing in the polls?” The Right was asked the same question about Republicans. Eighty-six percent of the Left said that Democrats were a “a great deal” or “somewhat” to blame. On the Right, nobody said that Republicans bore “a great deal” of the blame, but 57%, including me, voted for “somewhat.” I wrote: “When the Republicans took over Congress in 1995, they came in as reformers; by 2006, the Republicans had become participants in a culture of corruption (in both legal and illegal forms), and of abuse of the rights of the minority party. In 2007, the Democrats took power and promised reform, but they are acting just as corruptly and abusively (perhaps even more so). No wonder the public is cynical.”

A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3–0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook’s career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party “respondent in support of petitioner.”

Pictures and details here.

Last week’s National Journal poll of political bloggers asked Left-leaning and Right-leaning bloggers about their favorite political figures. Herewith, the results:

Most-admired House member: On the Left, Alan Grayson. My father’s former campaign treasurer, Denver Rep. Diana DeGette, tied for second. On the Right, tie between Jeff Flake, Mike Pence, and Paul Ryan. I voted for Flake.

Most-admired Senator: On the Left, Bernie Sanders. On the Right, Tom Coburn. I voted for Coburn.

Which current member of Congress has the brightest political future: On the Left, Alan Grayson. (A result I view as very wrong, if a bright political future includes winning re-election.) On the Right, a tie between Michelle Bachmann, Eric Cantor, and Jim DeMint. I voted for Bachmann, because I thought that she will continue to win re-election, might move up to the Senate, and continues to grow in national influence. Twelve months from now, she’ll still be rising in political influence, while Grayson will be trying to get a job as an Air America host. This isn’t a value judgment about Grayson/Bachmann, just a political prediction.

Most impressive Cabinet Secretary this year: On the Left, Hillary Clinton. On the Right, Robert Gates. I voted for Interior Secretary Salazar.

Which political figure has most impressed you this year: On the Left, Alan Grayson. On the Right, Sarah Palin. I voted for interim Honduran President Robert Micheletti, “for saving his nation from despotism and standing up to powerful foreign governments which backed the would-be despot.”

Who is the best Democratic/Republican strategist: The Left picked David Plouffe. The Right picked Karl Rove, as did I. Not so great in 2006, but pretty insightful these days.

Who is the most creative Democratic/Republican thinker: The Left chose “None,” followed by Howard Dean. The Right chose Newt Gingrich, as did I. Not a good manager, as shown by his tenure as Speaker of the House, but very creative and smart.

Which voice in the Democratic/Republican party would you like to mute: The Left wanted to silence Rahm Emanuel. On the Right, there was a tie between Gingrich, Michael Steele, and Lindsey Graham. I voted for “none,” because “Diversity is a sign of strength, and debate is healthy.”

Nelson Lund explains why in this new article, from the Florida Law Review. Lund is responding an article by Akhil Amar, which does not appear to be available on the public Internet.

Readers who want even more on the subject may enjoy Lund’s 2002 article in the Winter 2002 issue of Constitutional Commentary, responding to a 2001 Harvard Law Review article from Larry Tribe. Tribe wrote a counter-article in Constitutional Commentary; Lund’s reply to that is here. Tribe penned a further response.

And there is also Lund’s 2002 article from the Cardozo Law Review.

Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama’s Nobel Prize speech claim that “the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.” May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–“Thou shalt love they neighbor as thyself”–since Leviticus is Jewish scripture, and Rabbi Hillel’s kind and wise sayings are not.) May then writes: “I don’t think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah’s eyes and not in the eyes of Allah’s servants. Not unless and until they convert.”

One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion’s scripture or other teachings. However, if the question is: “Does every major world religion contain the Golden Rule?” the answer is “yes.” To wit:

Islam:  “Not one of you (truly) believes until he wishes for his brother what he wishes for himself.” An-Nawawī’s Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).

Confucianism: Mencius said, “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence.”  Mencius, Mencius, transl. D.C. Lau (N.Y.: Penguin, 1970), book 7, part A, item 4, p. 182. (And yes, I know that there’s a lot of discussion about whether Confucianism and Taoism are actually religions, or just philosophies.)

Taoism: Lao Tzu said, “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss.”  Lao Tzu, T’ai Shang Kan Ying P’ien (Treatise of the Exalted One on Response and Retribution), transl. Teitaro Suzuki & Paul Carus (La Salle, Illinois: The Open Court Pub. Co., 1906).

Hinduism: “This is the sum of duty: Do naught unto others which would cause you pain if done to you.”  Mahabharata, 5:1517.

Buddhism: Siddhartha said, “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?”  Christopher W. Gowans, Philosophy of the Buddha (London: Routledge, 2003), ch. 15.

Baha’i: : “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it.” Baha’u’lah, Gleanings, from the Writings of Baha’u’lah (U.S.: 1990), ch. 56, p. 128.

Jainism: “One should treat all creatures in the world as one would like to be treated.” Mahāvīra, Sutrakritanga 1.11.33.

Sikhism: “I am a stranger to no one; and no one is a stranger to me. Indeed, I am a friend to all.” Guru Granth Sahib, pg. 1299.

Are the above sayings all “central” to their respective religions? Well in Islam, the Hadith (stories and sayings of Muhammad, based on tradition) are much less central than the Koran. In Confucianism, Mencius is perhaps the greatest of Confucian writers, but he’s not Confucius. One could raise centrality questions about most of the quotes (other than the Sermon on the Mount, which is indisputably central). Does the Hadith’s reference to “his brother” mean: 1. A sibling? 2. A co-religionist? 3. Everyone? At the least, the Hadith’s text (like the text of references to a “brother” in other religions) is open enough so that kind-hearted people can legitimately interpret it as “everyone.”

While President Obama’s Nobel speech is Kennedyesque in the very best way, there is an important difference between the challenge that JFK faced and the one that BHO faces. Communism, like Nazism, was Evil incarnate. President Roosevelt was right to say so about Nazism, and President Reagan was right to say the same about Communism. The appropriate long-term goal for American policy was to eliminate these evils from the face of the earth. Such a goal is neither appropriate nor legitimate with regard to Islam. Accordingly, it was proper for the President Obama in Oslo to continue the Bush policy of appealing the best part of Islam, and of denying the claims of al Qaeda and similar evil-doers that they represent true Islam.

Although I didn’t vote for Barack Obama, he is my President, and I wish him every success in carrying out the positive vision he articulated today; if he does, he will have more than fully earned the Nobel Peace Prize.

For his very good speech accepting the Nobel Prize. Our President affirmed the principle of “just war,” and the righteousness of sometimes using unilateral force against tyranny, for “There will be times when nations–acting individually or in concert — will find the use of force not only necessary but morally justified.” In words reminiscent of John F. Kennedy or Ronald Reagan, President Obama continued:

I face the world as it is, and cannot stand idle in the face of threats to the American people.  For make no mistake:  Evil does exist in the world.  A non-violent movement could not have halted Hitler’s armies.  Negotiations cannot convince al Qaeda’s leaders to lay down their arms.  To say that force may sometimes be necessary is not a call to cynicism — it is a recognition of history; the imperfections of man and the limits of reason.

I raise this point, I begin with this point because in many countries there is a deep ambivalence about military action today, no matter what the cause.  And at times, this is joined by a reflexive suspicion of America, the world’s sole military superpower.

But the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world.  Whatever mistakes we have made, the plain fact is this:  The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.  The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.  We have borne this burden not because we seek to impose our will.  We have done so out of enlightened self-interest — because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others’ children and grandchildren can live in freedom and prosperity.

....

peace is not merely the absence of visible conflict.  Only a just peace based on the inherent rights and dignity of every individual can truly be lasting.It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War.  In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.

...

America has never fought a war against a democracy, and our closest friends are governments that protect the rights of their citizens.  No matter how callously defined, neither America’s interests — nor the world’s — are served by the denial of human aspirations.

So even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal.  We will bear witness to the quiet dignity of reformers like Aung Sang Suu Kyi; to the bravery of Zimbabweans who cast their ballots in the face of beatings; to the hundreds of thousands who have marched silently through the streets of Iran.  It is telling that the leaders of these governments fear the aspirations of their own people more than the power of any other nation.  And it is the responsibility of all free people and free nations to make clear that these movements — these movements of hope and history — they have us on their side.

peace is not merely the absence of visible conflict.  Only a just peace based on the inherent rights and dignity of every individual can truly be lasting.

It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War.  In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.

It is true that Obama administration has not always fully lived by these noble words. But at least today, the words themselves are what matters. The President’s Nobel Prize Speech was no apology tour, no bow to a foreign monarch. Like his speech at West Point, the Nobel speech was a strong continuation of the bipartisan Kennedy-Reagan foreign policy based on military strength, support for human rights, readiness to negotiate, and realistic idealism. Today, our President made me especially proud to be an American.

p.s. Contrary to what one of Hugh Hewitt’s co-bloggers wrote, the final section of the speech is not “where Obama re-coins the golden rule as ‘the law of love.’” For those who don’t recognize the phrase, here’s the background, from my article on modern pacifism in the Charleston Law Review:

In 1932, [the eminent Protestant theologian Richard] Niebuhr wrote that he could think of no good methods, short of war, to end Japanese aggression in China. But since he was a pacifist, force was out of the question. So he advocated “the grace of doing nothing.” That is, just sitting on the sidelines while Japan raped, literally and figuratively, the Chinese people and hoping that God would solve things in the long run.

...

In a famous exchange of letters with his brother Richard, Reinhold Niebuhr [also an eminent Protestant theologian] argued that the deeper principle of the pacifist Gospels was “the law of love.” He argued that the law of love required Christians to protect the victims of fascist aggression. His views were elaborated in his book Moral Man and Immoral Society. After World War II, Reinhold Niebuhr became one of the founders of Americans for Democratic Action, an organization of liberal Democrats such as Arthur Schlesinger, Jr., Hubert Humphrey, and John Kenneth Galbraith—who supported President Truman’s leftist economic policies and staunch resistance to Stalin.

In short, Obama’s use of Niebuhr’s phrase “the law of love” fits perfectly with the central question that Obama addressed in his speech. Indeed, the “law of love” line comes along with a very Niebuhrian explication. The speech not only invoked President Kennedy twice, it was a speech that President Kennedy himself might have given (with, of course, some changes in details) if Kennedy had lived long enough to receive the Nobel Prize. Certainly there is a great deal in the Obama speech that matches what Ronald Reagan and George W. Bush believed and practiced. However, the amount of attention that the speech gave to development aid as a tool for peace is not a Reagan theme, although it was a theme for both Kennedy and Bush. The speech’s exaltation of multilateral institutions like the U.N. was also a Kennedy theme, not a Reagan or Bush theme. So while the speech is definitely within the bipartisan Kennedy-Reagan mainstream, the speech is closer to a Kennedy speech than anything else. Accordingly, it was especially appropriate for our young President–who like Kennedy inspires many people around the globe–to use the words of Niebuhr that so profoundly influenced the great anti-communist liberal Democrats of the Age of Kennedy.

p.p.s. Much more on Niebuhr here, in chapter 3 of my Brown Univ. thesis on Arthur Schlesinger.

Summary of thesis by Canadian lawyer Jacques Gauthier is here. Thoughtful pro/con comments are solicited. Comments should address legal arguments only. Trolls will be suppressed.

As part of our special Christmas and Hanukkah programming on the VC, here is a 50-minute podcast interview with Alan Gura. It’s all about McDonald v. Chicago, particularly about the meaning of the Privileges or Immunities clause and of the Due Process clause.

This week’s National Journal poll of political bloggers asked “How much confidence do you have in President Obama’s Afghanistan strategy?” On both the Left and the Right, no-one chose “A great deal of confidence.” The figures for “some confidence”/“not much confidence”/“no confidence” were 29%/50%/21% on the Left; and 43%/43%/14% on the Right.

I was among the “some confidence” voters. Although I disagree with the announcement of tentative plan to begin withdrawing after 18 months, and I was dismayed by the dithering of the last three months, I am persuaded by John McCain’s support for the Obama plan. If Senator McCain thinks that the Obama plan can work, then I am cautiously hopeful.

The second question in the National Journal poll was “Which is the bigger political imperative for Congress next year, creating jobs or reducing the deficit?” One hundred percent of the Left voted for “creating jobs,” as did 43% of the Right. Along with 50% of the Right, I voted for cutting the deficit, because “Reducing the deficit by ending the reckless spending spree will help improve business confidence, and thereby promote job creation.”

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19  Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about constitutional language and history.

Part II investigates Kozuskanich’s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the  Quaker’s protests against being forced to “bear arms” in the  militia demonstrate that “bear arms” is exclusively a military term; therefore the “right to keep and bear arms” is only about owning and carrying militia weapons.

But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich’s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists’ arms.

Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.

For March 2, at 10 a.m.

In other McDonald news, Declan McCullagh of CBS News has an article discussing some of the McDonald amicus briefs, including mine.

And in my continuing program of calling attention to interesting briefs in the McDonald case, here’s a link to the brief of Safari Club International. It’s a solid example of a particularly helpful type of amicus brief, in which a group shares its practical expertise with the Court, explaining how the Court’s decision may impact a particular activity. As the SCI brief details, local gun bans such as Chicago’s can significantly interfere with hunting. For example, nationwide, over a million people use handguns for hunting, yet Chicago residents are forbidden to own these hunting arms. The result is harmful not only to humans, but to wildlife; the brief explains the tremendous role that regulated hunting plays in wildlife conservation and management.

In Sunday’s presidential election, the voters of Honduras chose Partido Nacional candidate Pepe Lobo, who won 58%, compared to 33% for Partido Liberal candidate Elvin Santos. Both candidates supported the removal of former president Manuel Zelaya, who had violated Articles 373 and 374 of the Honduran Constitution and forfeited his office by attempting to arrange a second term for himself. Zelaya had called for a boycott of the election, and predicted that an abstention rate of over 50% would make the election illegitimate. As it turned out, 61% of enrolled voters cast ballots–an increase from the 2005 presidential election (which Zelaya won with 49.9%), and in which only 53% of enrolled voters had participated. In the 2001 election, participation was 64%; in 1997 it was 72%, and in 1993 it was 65%.

Although Zelaya had won on the Partido Liberal line, his attempt to entrench himself in office made him anathema to the vast majority of Partido Liberal legislators.

Update: Since some readers were apparently unclear about what I meant by “decisive win for democracy,” I meant that a solid majority of Hondurans repudiated by Zelaya by going to the polls to vote overwhelmingly for two candidates who both repudiated Zelaya’s efforts to destroy the Constitution. Which of the two of those candidates got the most votes was irrelevant to the fact that democracy itself triumphed.

Pre-election polls showed support for an initiative to ban the construction of new minarets in Switzerland at only about 35%. However, thanks in part to backing from feminists, the ban passed with 57.5% on Sunday, sweeping all but a few of Switzerland’s 26 cantons. The website for the ban’s supporters is here, along with a picture of a campaign poster (showing the Swiss flag punctured by missile-like minarets, along with a woman in a burka) that was banned in some cities because it was said to be discriminatory.

A legal challenge is likely under the European Convention on Human Rights. The most relevant provision is Article 9, which provides:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Proponents frequently cited the 1997 words of Turkey’s  Prime Minister Recep Tayyip Erdogan: “Mosques are our barracks, domes our helmets, minarets our bayonets, believers our soldiers. This holy army guards my religion.” A useful Wikipedia article is here. Switzerland’s population is about 5–6% Muslim, mostly immigrants from southeastern Europe.

Update: A commenter asks for what the arguments were in favor of the ban. According to the website of the initiative’s proponents, the argument was that minarets are intended as a symbol of Muslim superiority, particularly of superiority to any different religious/political system, and accordingly a vote against minarets is a vote against creeping shariaism. As the Wall Street Journal noted, the initiative is not a particularly effective tool for accomplishing its proponents’ objectives, but perhaps the Swiss majority decided that it was the only tool available to send a message to the political establishment.

Back in 2003, after I visited Geneva, I wrote the following for my Rocky Mountain News media column: “Local investigative reporting appears weak. A Swiss television station recently exposed a secret deal between the Geneva police and the Iranian government: The Iranians would not commit terror in Switzerland, while the Geneva police would turn a blind eye to Iranian terror bases in Geneva. In the United States, such a revelation would set off a frenzy of newspapers advancing the story with further investigation about a gigantic local police scandal, but the Geneva papers did little with the story.”

This is just one of many examples of the Swiss elite’s feckless and amoral dealing with the Islamonazis of Tehran. Roger L. Simon has written extensively about the Islamist hate-fest at the UN’s “Durban II” conference earlier this year in Geneva, where “I watched as the Swiss President welcomed the Holocaust-denying-nuclear-bomb-buliding-mega-misogynistic-homosexual-denying-and-now-demonstrator-murdering-religious-psychopath President of Iran Mahmoud Ahmadinejad.”

The Swiss government has provoked a backlash from the Swiss people. The decent, pro-freedom Swiss Muslims from places like Albania, who see a minaret as symbolizing nothing more than a Muslim parallel to a church spire, are the innocent victims.

Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago’s) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.

Today, let’s take a look at the brief of Philosophy and Criminology professors. It’s co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC’s handgun been had been a failure, and probably counter-productive, in terms of public safety.

The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit’s assertion in McDonald that self-defense is merely a “gloss” on the criminal law, and could be abolished by statute.

Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates’ three decades of scholarship on firearms policy.

A long section titled “Research makes gun ban advocates recant” provides a history of the social science debate on gun control in the U.S. since the 1960s. Some of the most prominent scholars who have been critical of gun control started out as gun control advocates, but changed their mind because of the evidence. These include James Wright, Gary Kleck, Marvin Wolfgang, and Hans Toch (a member of the 1968–69 Eisenhower Commission which had promised that reducing handgun availability would reduce crime).

Finally, there are several pages responding to a recent study (by Branas et al. from Penn) claiming that guns are ineffective for protection in an urban environment because gun carriers are supposedly more likely to be shot than non-carriers.

Regarding another brief...Orin’s Monday post, “Against Congressional Briefs,”  argues that, out of respect for separation of powers, Congresspeople should not file briefs in Supreme Court cases. However, it should be remembered that the Court does look to Congressional intent and action–not just in interpreting federal statutes, but also in momentous constitutional cases. For example, in Frontiero v. Richardson, 411 U.S. 677 (1973)(equal protection clause applies to sex discrimination), Justice Brennan’s plurality opinion listed some recent actions that Congress had taken against sex discrimination (Civil Rights Act of 1964, Equal Pay Act of 1963, sending the Equal Rights Amendment to the states for ratification in 1972), and declared: “Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal brand of Government is not without significance to the question presently under consideration.”

Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement. And, in the McDonald brief, to point out that some local infringements violate not only the Second Amendment, but also the Supremacy Clause, because they interfere with congressional exercise of its enumerated militia power.

Eugene has written a post about the brief which Chuck Michel filed on behalf of 34 California District Attorneys, and other law enforcement officials. In light of the speculation about the DAs and their motives, it seems useful to provide some background. In Heller, 29 elected California District Attorneys joined the brief that Chuck and I co-authored. That brief explicitly stated: “strict scrutiny is the appropriate standard of review for most gun controls.” (p. 39).