The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:

Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.

UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly as part of the tax scheme, the Act also required registration of those drugs. A physician lawfully dispensed one tablet of morphine and three tablets of cocaine to a female patient who was an addict. The trial court instructed the jury that Dr. Linder’s actions would be lawful if the drugs were dispensed as painkillers for stomach cancer or an ulcer, but not simply because the patient was an addict. As the Supreme Court observed, the indictment “does not question the doctor’s good faith nor the wisdom or propriety of his action according to medical standards. It does not allege that he dispensed the drugs otherwise than to a patient in the course of his professional practice or for other than medical purposes. The facts disclosed indicate no conscious design to violate the law, no cause to suspect that the recipient intended to sell or otherwise dispose of the drugs, and no real probability that she would not consume them.”

The Court pointed out that “Congress cannot, under the pretext of executing delegated power [here, the Tax Power], pass laws for the accomplishment of objects not intrusted to the federal government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power, but solely to the achievement of something plainly within power reserved to the states, is invalid and cannot be enforced.” This was supported by a string cite starting with McCulloch v. Maryland.

In the instant case, the power to tax cocaine and morphine carried with it incidental powers to effectuate that tax, and the effectuation of the tax was the sole legitimate use of incidental powers. Incidental powers could not be construed to control a physician’s decision about properly taxed and registered products:

“Obviously, direct control of medical practice in the states is beyond the power of the federal government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. The enactment under consideration levies a tax, upheld by this court, upon every person who imports, manufactures, produces, compounds, sells, deals in, dispenses or gives away opium or coca leaves or derivatives therefrom, and may regulate medical practice in the states only so far as reasonably appropriate for or merely incidental to its enforcement. It says nothing of ‘addicts’ and does not undertake to prescribe methods for their medical treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances. Mere pretense of such practice, of course, cannot legalize forbidden sales, or otherwise nullify valid provisions of the statute, or defeat such regulations as may be fairly appropriate to its enforcement within the proper limitations of a revenue measure.”

Thus, said the Court, Linder was different from previous cases in which the Court had upheld the prosecution of physicians whose prescription of large quantities of drugs was obviously a sham, for no medical purpose, and simply to serve as a conduit for drugs to the general public.

It is not surprising that Linder was relied in several cases finding that Congress had exceeded tax power. U.S. v. Butler (1936); Hopkins Federal Savings & Loan Ass’n v. Cleary (1935); U.S. v. Constantine (1935); Trusler v. Crooks (1926).

Significantly, after 1937, the Court continued to rely on Linder, and in upholding other statutes, to distinguish them from the mis-application of the statute in Linder. “While there has long been recognition of the authority of Congress to obtain incidental social, health or economic advantages from the exercise of constitutional powers, it has been said that such collateral results must be obtained from statutory provisions reasonably adapted to the constitutional objects of the legislation. Linder v. United States.” Cloverleaf Butter v. Patterson (1942).

Linder appears the very first paragraph of a case familiar to many VC readers, United States v. Miller (1939). Citing, inter alia, Linder, the Miller opinion says that the federal tax and tax registration system for certain firearms does not “usurp[] police power reserved to the States.”

In U.S. v. Kahriger (1953), Linder is a “But see” footnote for this sentence: “Unless there are provisions, extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.” I think that’s a misreading of Linder. The Court’s point in Linder was that micro-managing a physician’s decision about when to write a prescription was in fact “extraneous to any tax need.” So Linder and Kahriger are not inconsistent.

In a case decided after Kahriger, the Court upheld a gambling device tax, expressly distinguishing it from Linder, because the gambling tax is “certainly not a mere ruse designed to invade areas of control reserved to the states.” U.S. v. Five Gambling Devices (1953).

The most important case which relies on Linder is Ashwander v. Tennessee Valley Authority (1936) (upholding the TVA). There, the majority opinion by Chief Justice Hughes affirms that “The Congress may not, ‘under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government.’ Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 423; Linder v. United States, 268 U.S. 5, 15, 17.”

Justice Brandeis’s concurrence in Ashwander is, to this day, regarded as the most important guidance for the judicial principles of abstention. Number 7 of the “Ashwander principles” is that a court should attempt to construe a statute so as to avoid a constitutional problem, and for this proposition, Justice Brandeis cited Linder, among other cases.

In short, even if one takes the view that cases upholding certain aspects of the New Deal and the Fair Deal enjoy some sort of supra-precedential status that earlier cases do not, Linder is part of the fabric of those privileged cases.

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

Mister Ed (1961-66). Mister Ed is a talking horse who belongs to a human named Wilbur, and will speak only to him. Wilbur attempts to conceal Mr. Ed’s ability from the neighbors.

McHale’s Navy (1962-66). In the South Pacific during World War II, PT boat Lt. Commander McHale and the crew of PT-73 work hard at having fun, to the dismay of Captain Binghamton.  Concealed in their barracks is a Japanese prisoner of war named “Fuji,” who gratefully serves as their houseboy. Keeping Fuji hidden from the American officers is the subject of several episodes, but it is not as central to the show as are the secrets in the other shows on this list.

My Favorite Martian (1963-66). After a Martian scientist’s spaceship crashes, Tim O’Hara rescues him. Tim invites the Martian (whose real name is Exigius 12½) to live with him, and passes him off as Tim’s “Uncle Martin.”

Bewitched (1964-72). Samantha is a beautiful witch who is married to advertising executive Darrin Stephens. They live in the suburbs, and often face challenges trying to conceal Samantha’s powers from the nosy neighbors and Darrin’s boss.

My Mother the Car (1965-66). David Crabtree’s deceased mother is reincarnated in a 1928 luxury automobile. She speaks only to him, through the car radio. He must conceal the car’s secret from the world, especially Captain Manzini, who is determined to acquire the antique.

I Dream of Jeannie (1965-70). Jeannie is a beautiful 2,000 year old genie who lives with astronaut Tony Nelson. Tony and his best friend Roger must conceal Jeannie’s existence from everyone else, especially the commanding officers at NASA.

Another theme of some sitcoms of the period is the family of freaks who do not know that they are freaks:

The Beverly Hillbillies (1962-71). After the Clampetts accidentally strike it rich by discovering oil on the Ozark property, patriarch Jed moves them to Beverly Hills. They retain their rural dress and customs, and seem to have little or no idea how aberrant they are in urban California. Their innocent good nature keeps them (except for the half-witted skirt-chaser Jethro) out of trouble most of the time.

The Munsters (1964-66). The father looks like Frankenstein, his father-in-law is a vampire, and so on. Living with them is their niece Marilyn, who is an ordinary human college student, and whom the rest of the family considers to be a freak, but they are very nice to her. Marilyn apparently is unaware that the Munsters are different from everyone else.

The Addams Family (1964-66). A family of wealthy eccentrics with paranormal abilities and a strong taste for the macabre enjoys life in their mansion. Again, they have no clue how bizarre they are.

So in 1965-66, when there are only three national networks producing TV series, we have in a single television season five shows built around the concealment of character with a unique trait. (Or six, if you include the McHales’s Navy subplot), and three shows about extremely strange families who think they are normal.

So my question to the commenters is “Why?” Were these shows an unintentional avant garde, extolling the pleasures of non-conformity and the virtue of tolerance to Middle America? Except for “My Mother the Car,” all the shows were at least moderately successful for a while, and Beverly Hillbillies and Bewitched garnered top ratings. So was the American public subconsciously looking for validation for non-conformity? Or is there some other explanation?

At last, I found the answer, in Thomas Wright’s book “Caricature History of the Georges” (1860), which examines political and social satire drawings during the reigns of England’s King Georges I, II, and III. A very interesting book, if you’re interested in English history. Despite what the title might suggest, most of the book is text, not pictures. The author notes that for a while in the late 18th century, magazines often did 3-word book reviews. So let’s call this book “clever, erudite, tory.”

On pages 258-61, we learn that during the reign of George II, “men of fashion” were called “beaux.” In 1749, “fribble” became the new term, and this persisted into the reign of George III. In 1772, things changed. Rich young men who had made the tour of the continent came back with new fashions of all kinds; thanks to the wealth pouring in from India, the time was one of extravagant frivolity. The young men formed a club which soon took the name of the unusual Italian dish which it served. For the gentlemen of the Macaroni Club, “it was their pride to carry to the utmost excess every description of dissipation, effeminacy of manners, and modish novelty of dress.” The Macaronis of 1772 “were distinguished especially by an immense knot of artificial hair behind, by a very small cocked-hat, by an enormous walking stick, with long tassels, and by jacket, waistcoat, and breeches, of every close cut.”

Then in 1773 the Macaroni fashion changed to “the elevation of the hair, and the adoption of immense nosegays in the bosom.”

So the mystery of Yankee Doodle is solved. He is an American rube and rustic. He naively thinks that a mere feather in his cap makes him an ultra-fashionable “macaroni.”

It turns out that I could have learned the truth by just looking up “Yankee Doodle” and “Macaroni” in Wikipedia. But at least I finally understand.

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court’s power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President’s war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I’ll be using Randy Barnett’s textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I’d strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

FOLLOW-UP: Things are worse than I had feared. Several commenters mentioned some great books (e.g., Gordon Wood), but I want a survey that goes from no later than 1776 through most of American history. No textbooks for AP or college US History, although I wish my students had the time and the money for the Schlesinger textbook. No books that focus on a particular issue, even if it’s a broad one (e.g., Eric Foner’s book). I’m certainly not going to inflict Howard Zinn on my students. I read the 1st edition of People’s History almost as soon as it came out, and enjoyed it. But that’s definitely not the starting point for someone to learn the actual history of the United States; it’s a book for someone who already knows a lot of American history, and can discern the difference between some neglected stories that Zinn tells, and the incredible amount of chaff. Bill Bennett did so much damage to the Constitution during the Bush administration that I recoil from using his book in a constitutional law class. So in the realm of affordable survey paperbacks, we’re down to Brogan’s Penguin History and Paul Johnson’s A History of the American People. Based on Amazon reviews, each book is way too didactic for my purposes. Not that the distinguished authors are not entitled to their points of view; I just want something without such a heavy hand. At this point, I’m leaning towards telling students to buy Samuel Eliot Morrison’s Oxford History, which ends in 1963, but is available used for almost nothing, plus shipping. Or his more recent Concise History of the American Republic, also available used for very good prices.

In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and “less worthy” (in the language of the time) than the principal power. So if A delegates to B the power to manage A’s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an “incident” of the power to manage a farm. It is a power that is as great as the power to manage the farm.

Thus, the first half of Chief Justice Marshall’s opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an “incident” of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett’s Constitutional Law: Cases in Context.

So is the power to order people to engage in commerce with certain corporations “incidental” to the enumerated power “to regulate Commerce . . .  among the several States”? Lawson and I argue that the power to compel intrastate commerce is of at least equal “dignity” as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a “necessary and proper” to the exercise of the power to regulate interstate commerce.

Further, the word “proper” affirms the agency/fiduciary law rule that an agent  must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke’s Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff’s house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not “proper,” because the monopolist was benefited to the detriment of everyone else.

In 1787, a consumer could at least choose not to buy the monopolist’s product.  ”The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”

Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland‘s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.

There was once a time when it was considered unseemly for even the most ambitious candidates to announce before the calendar year of the election. That’s one reason that John F. Kennedy waited until Jan. 2, 1960, to formally announce. George McGovern broke the mold by formally announcing on Jan. 18, 1971, which turned out to be the right strategy for a long-shot who needed plenty of time to organize. Jimmy Carter studied the McGovern campaign assiduously, and used its tactics, including the very early announcement, to win his own long-shot race in 1976.

So now, with almost everyone practicing McGovernism, the presidential campaign has been going hard for much of the pre-election year. If you want to know the history thus far, the just-published Election 2012: The Battle Begins is a strong choice. It’s written by Tom Bevan and Carl Cannon, and published by RealClearPolitics.com, the world’s best political website. Election 2012 is e-book only, and costs just $2.99. The ideal reader might be someone who lives abroad, is very interested in American politics, and only gets the limited coverage available from the International Herald Tribune, or foreign papers. In the United States, readers who are so fascinated with politics as to want to read a history of the election the year before the election will probably already know most of what’s in the narrative. Yet even those readers will find interesting details about the behind-the-scenes strategizing and the battles within the campaign staffs, especially for Gingrich, Bachmann, and Pawlenty. And the story of how Huckabee looked very seriously at a run, and then backed away. Readers will also learn about the inside of the Romney campaign, but not about behind-the-scenes turmoil, because this time around Mitt’s campaign is as smooth and unflappable as is Mitt himself while on a debate stage.

More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is “supplying of content” to constitutional ”liberty,” the Court should have “regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.”

Can commentators supply some additional examples, either regarding specific issues, or general Poe-like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.

Ranking even higher, I would suggest, would be a casebook that not only get the subject into the law schools, but plays an important role in creating new lawyers who will, during their careers, significantly change the existing law on the subject. On the real-world influence scale, can anything top Ruth Bader Ginsburg, Herma Hill Kay & Kenneth M. Davidson, Text, Cases, and Materials on Sex-Based Discrimination (1974)?

Commenters, what do you think should make the honor roll of most influential casebooks of all time?

Although the general views above were shared by Thomas Jefferson, the President quoted above was William Howard Taft, who served from 1909-13, and later as a very good Chief Justice of the Supreme Court.

Americans today tend to congratulate themselves for being more tolerant and open-minded than their ancestors of a century or two ago. Yet those earlier Americans elected the great Jefferson twice, and elected Taft once. Taft is not today remembered as a great President, but he at least he did much less harm to the United States than the man who succeeded him, Woodrow Wilson.

I find it disgusting that a Gallup Poll found 22% of Americans (18% of Republicans, 19% of Independents, and 27% of Democrats) say that they would not vote for a well-qualified candidate of their party who happened to be a Mormon. That’s actually an increase compared to 17% who gave the same answer in 1967.

If some Christians want to take the theological view that Unitarians, or Mormons, or, for that matter, Catholics are not true Christians, that’s their privilege, and it’s very legitimate source of religious debate. I don’t think that whether a candidate fits a voter’s definition of orthodox Christianity is a legitimate basis for voting for a public official.

Kudos to Mitt Romney, in his speech today at the Values Voters summit, for denouncing the “poisonous language” of Bryan Fischer, another invited speaker at the event, who makes the idiotic claim that the First Amendment was not intended to protect non-Christians.

And there’s still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so “may issue” amounts to “will not issue.” It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right.

My answer to what the Supreme Court should do is:

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”
 
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.

The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); “Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce’: A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).

Since Scotusblog is trying to get people to comment on its own website, I’m not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.

Oklahoma City Univ. law professor Michael O’Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O’shea’s co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O’Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in “sensitive places”). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website’s promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post-Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post-Heller cases in the lower courts). Or if you’re teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Summary of Contents

Contents

Preface

Acknowledgements

Editorial Note

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

Chapter 1. A Brief Introduction to Firearms and Their Regulation

Chapter 2. Antecedents of the Second Amendment

Chapter 3. The Colonies and the Revolution

Chapter 4. The New Constitution

Chapter 5. The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

Chapter 6. Reconstruction and Beyond

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

Chapter 7. A New and Dangerous Century

Chapter 8. Between Miller and Heller: The Second Amendment in the Modern Era

Chapter 9. The Supreme Court Affirms an Individual Right to Arms

Chapter 10.  The Right to Arms after Heller

Chapter 11.  Firearms Policy and Status: Race, Gender, Age, Disability, and Sexual Orientation

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

Chapter 12.  Social Science on Guns and Self-Defense

Chapter 13.  International Law

Chapter 14.  Comparative Law

Chapter 15.  Detailed Explanation of Firearms and Ammunition

Contents

Preface

Acknowledgements

Editorial Note

PART ONE

THE ORIGINS OF THE RIGHT TO ARMS

Chapter 1

A Brief Introduction to Firearms and Their Regulation

A.  The Parts of a Firearm and Ammunition

B.  Firearm Features

1. Firing Mechanism
2. Ammunition Feeding
3. Safety Devices
4. Firearm User Safety

C.  The Major Types of Firearms

1. Handguns
   1. Semi-Automatic Pistols
   2. Revolvers
   3. Legitimate Uses of Handguns
   4. Criminal Uses of Handguns
2. Rifles
   1. Bolt-Action
   2. Semi-Automatic
   3. Lever-Action
   4. Single-Shot
   5. Characteristics of Rifles
   6. Legitimate uses of rifles
   7. Crime with rifles
3. Shotguns
   1. Shotgun Shells
   2. Types of Shotguns
   3. Legitimate Uses of Shotguns
   4. Crime with shotguns

D. Modern Gun Control Laws

1. Purchasing a Gun from a Commercial Dealer
2. Purchasing a Gun from Other Persons
3. Purchases in Various Locations
4. Gun Registration
5. Keeping the Gun at Home
6. Target Shooting
7. Hunting with a Gun
8. Carrying a Gun for Protection
   1.  At Home, or in Your Place of Business
   2. In your automobile
   3. In Public Places
9. Local laws

10. Using a Gun for Self-defense

E.  Gun Control Controversies Today

Appendix: The Right to Arms in State Constitutions

Chapter 2

Antecedents of the Second Amendment

A.  The Early Far East

1. Confucianism

The Analects of Confucius

Mencius

1. Taoism        

Tao Te Ching

Wen Tzu

The Master of the Hidden Storehouse

Huainanzi

B.  Ancient Greece and Rome

1. Greece

1. Greek law
2. Plato vs. Aristotle
   1. Plato
   2. Aristotle

Aristotle’s Constitution of Athens, ch XV

1. Rome

Corpus Juris

C.  Judeo-Christian Thought

1. Jewish Thought
2. Early Christian Thought
   1. The Sermon on the Mount
   2. The Final Instructions to the Apostles
   3. The Arrest of Jesus
   4. Paul’s Letter to the Romans
   5. Other Early Christian Writings
3. Medieval Christian Thought
   1. John of Salisbury’s Policraticus
   2. Thomas Aquinas

D. Second-millennium Europe

1. Italian Influence

Cesare Beccaria, An Essay on Crimes and Punishments, ch. 40

1. England
   1. Magna Charta
   2. English statutes

     Assize of Arms

     Statute of Northampton

     Gun and crossbow control

1. Castle Doctrine Cases
2. Hue and Cry, the Militia, the Glorious Revolution, and the Declaration of Right
3. Blackstone
4. John Locke, Jean de Barbyrac, and John Adams

John Locke, Second Treatise of Government

1. Novangelus

Chapter 3

The Colonies and the Revolution

A.  Firearm Control in the Colonies

1. Early Arms Mandates
   1. Colonial Statutes Mandating Arms Possession

Massachusetts

Maryland

Connecticut

New York    

Virginia

New Jersey

New Hampshire

North Carolina

Delaware

Pennsylvania

1. Colonial Statutes Mandating Arms Carrying

Virginia

Connecticut

Massachusetts

Rhode Island

Maryland

South Carolina

Georgia

1. Statutory requirements for Arming Free Servants and Children
2. Early Firearm Regulation and Prohibition
   1. Safety Regulations
   2. Limits on Gun Sales to Indians
   3. Gun Restrictions on Blacks
   4. Sporadic Disarmament of Dissidents

B.  Firearms, Self-Defense and Militias in Pre-Revolutionary America

1. The Boston Massacre Trial
2. A Colonial View of the English Right to Arms

E.A. [Samuel Adams], Boston Gazette, Feb. 27, 1769

1. C. Religion, Arms, and Resistance

Jonathan Mayhew, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers: With Some Reflections on the Resistance Made to King Charles I and on the Anniversary of his Death

Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston

C.  The British Crackdown

1. The Coercive (Intolerable) Acts and the Powder Alarms
2. Disarmament Orders from London
3. The Import Ban
4. Calls for Defiance: Patrick Henry and the South

Patrick Henry, The War Inevitable, Speech at the Second Revolutionary Convention of Virginia

1. Defiance in Practice and the Independent Militias

D. Arms and the American Revolution

1. Gun Confiscation at Lexington & Concord
2. Gun Confiscation in Boston
3. Declaration of Causes of Taking Up Arms

The Declaration by the Representatives of the United Colonies of North America, July 6, 1775

1. Falmouth Destroyed
2. The Declaration of Independence

The Declaration of Independence

1. Thomas Paine on Self-Defense, Resistance, and Militias
2. Gun Confiscation and Smuggling Reprised
3. The Militia, the Continental Army, and American Marksmanship

E.  The Articles of Confederation

F.  The Right to Arms, Standing Armies, and Militias in the Early State Constitutions and Statutes

South Carolina

Virginia

New Jersey

Pennsylvania

Delaware

Maryland

North Carolina

Georgia

New York

Vermont

Massachusetts

New Hampshire

Connecticut

Rhode Island

Chapter 4

The New Constitution

A.  Standing Armies, Militias, and Individual Rights—The Constitutional Convention of 1787

B.  Ratification of the Constitution

Pennsylvania

Massachusetts

Maryland

New Hampshire

Virginia

Virginia Ratification Message

Resolution of Virginia’s Proposed Amendments

New York

North Carolina

Resolution of North Carolina’s Proposed Amendments

Rhode Island

C.  Commentary During the Ratification Period

1. The Federalist Papers

The Federalist No. 29 (Alexander Hamilton)

The Federalist No. 46 (James Madison)

1. Tench Coxe
2. Other Federalists

D. The Second Amendment

1. The Second Amendment’s Path Through Congress
2. Commentary on the Second Amendment

E.  Post-Ratification

1. The Militia Acts

First Militia Act of 1792

Second Militia Act of 1792

1. St. George Tucker
   1. Tucker’s Blackstone
   2. Tucker’s Early Lecture Notes

F.  Federal and State Military Forces of Today

1. The United States Armed Forces
2. The National Guard
3. State Defense Forces
4. The Unorganized Militia

Chapter 5

The Right to Arms, Militias, and Slavery in the Early Republic and Antebellum Periods

A.  Militias as a Military and Political Force in the Post-Revolutionary Period

1. The Crisis of 1798-99
   1. The Federalist Program
2. The Kentucky and Virginia Resolutions
3. Fries’s Rebellion

Robert H. Churchill, Popular Nullification, Fries’s Rebellion, and the Waning of Radical Republicanism, 1798-1801

1. The War of 1812

B.  Antebellum Case Law on the Right to Arms Under State and Federal Constitutions

1. A right to carry weapons openly for self-defense

Nunn v. State

1. The “civilized warfare” test: militia weapons only?

Aymette v. State

1. A collective “right of sovereignty” subject to legislative discretion?
2. The use of antebellum state court decisions to interpret the Second Amendment

C.  Weapons Control and Southern Culture

D. The Right to Arms and Slavery

State v. Newsom

Robert J. Cottrol & Raymond T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?

E.  Antebellum Legal Commentary on the Right to Arms

1. William Rawle
2. Joseph Story

The Second Amendment in Story’s Familiar Exposition

Houston v. Moore 

Chapter 6

Reconstruction and Beyond

A.  The Initial Southern Response to Black Freedom

1. The Black Codes

Louisiana

Mississippi

Landry Parish, Louisiana

Alabama

1. The Ku Klux Klan and Other Extra-legal Suppression of Freedmen

B.  The Congressional Response: The Fourteenth Amendment, the Freedmen’s Bureau Acts, and the Civil Rights Act

Thirteenth Amendment

Civil Rights Act of 1866

Second Freedmen’s Bureau Act

Fourteenth Amendment

United States v. Cruikshank

C.  Labor Agitation and the Repressive Response

Presser v. Illinois

D. Nineteenth Century Commentary

1. Chief Justice Thomas M. Cooley

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America

1. Other Commentary

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes

Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (2d ed.)

E.  Late Nineteenth Century State Laws and Cases

Andrews v. State

State v. Wilburn

The Postbellum Experience in Arkansas

State v. Duke

City of Salina v. Blaksley 

F.  State Constitutions at the Turn of the Century

G. The Self-Defense Cases

PART TWO

THE RIGHT TO ARMS IN THE MODERN WORLD

Chapter 7

A New and Dangerous Century

A.  Immigration, Labor Unrest, and Alcohol Prohibition

Patsone v. Pennsylvania

People v. Nakamura

B.  The Federal Government Begins To Act

National Firearms Act of 1934

Federal Firearms Act of 1938

Sonzinsky v. United States

United States v. Miller

C.  National Firearms Act Regulation Today

Machine guns

Short barreled rifles

Short barreled shotguns.

Silencers

Destructive devices

“Any other weapons”

The NFA transfer procedure     

D. Miller’s Aftermath: The Shrinking Second Amendment

Cases v. United States

United States v. Tot

E.  Armed Citizens and the Second World War

1. The United States
2. The United Kingdom

Chapter 8: Between Miller and Heller: The Second Amendment in the Modern Era

A.  The Second Amendment in the Lower Federal Courts

United State v. McCutcheon

Stevens v. United States

Cody v. United States

United States v. Brimley

United States v. Warin

United States v. Hale

B.  Six Decades of Cryptic Supreme Court References to the Second Amendment

1. The Right to Arms as a Liberty Interest?

Poe v. Ullman

1. Defining Terms Used in the Second Amendment

United States v. Verdugo-Urquidez

Muscarello v. United States

1. Gun Control and the Limits of Federal Power.

United States v. Lopez

Printz v United States

Exercise: The Firearms Freedom Acts

1. Felons and the Right to Arms

Lewis v. United States

C.  The Social and Political History of the Right to Arms Between Miller and Heller

The calm before the storm

Racial tensions

Comprehensive National Gun Control

The Rise of the Modern Gun Control Movement and the Revolt at the NRA

Handgun prohibition

The NRA Counter-offensive, and the Growing Sophistication of the Gun Control Lobby

George H.W. Bush

The Clinton Era

The Re-emergence of the Second Amendment

Columbine and the 2000 Election

The Great American Gun War Winds Down

D. Federal Regulation of Firearms in the Modern Era

1. The Challenge of Defining Specially Regulated Firearms

United States v. Thompson/Center Arms Company

2. Regulation of Retail Sales of Conventional Firearms

a. Regulation of buyers

National Rifle Association of America Inc. v. Reno

United States v. Moore

b. Regulation of sellers

United States v. Biswell

3. Private Sales, Private Manufacturers: The Secondary Market and Gun Shows

Scope v. Pataki

Chow v. Maryland

4. “Sporting Use” as a Marker of “Legitimate” Firearms

Gilbert v. Higgins

5 . Policing of Illegal Guns

Terry v. Ohio

Staples v. United States

6 . Litigation Against the Gun Industry and the Legislative Response

City of New York v. Beretta U.S.A. Corp

7. Regulation of Firearms Designated “Assault Weapons”

Springfield Armory, Inc. v. City Of Columbus

8. Regulation of Interstate Transportation of Firearms

Revell v. Port Authority of New York & New Jersey

Torraco v. Port Authority of New York & New Jersey

E.  On the Threshold of an Individual Right to Arms: Full Engagement of the Second Amendment by the Fifth and Ninth Circuits

United States v. Emerson

Silveira v. Lockyer

Chapter 9

The Supreme Court Affirms an Individual Right to Arms

A.  The Supreme Court Affirms an Individual Right to Keep and Bear Arms Against Federal Infringement

District of Columbia v. Heller

B.  The Supreme Court Incorporates the Right to Keep and Bear Arms Against the States

McDonald v. City of Chicago

Comment: Modes of Constitutional Interpretation

Textualism

Originalism

Tradition and History

Emerging Awareness

Stare decisis

Values

Liberty

Popular Constitutionalism

Good Policy Results

Judicial Activism and Judicial Restraint

Exercise: Harm in the Speech Context

Exercise: Constitutional Drafting

Chapter 10

Firearms Policy and Status:

Race, Gender, Age, Disability, and Sexual Orientation

A.  Firearms Policy and the Black Community

Brief for NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for Congress of Racial Equality as Amicus Curiae Supporting Respondent, District of Columbia v. Heller

B.  Gender

Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioner, District of Columbia v. Heller

Brief for 126 Women State Legislators and Academics as Amici Curiae Supporting Respondent, District of Columbia v. Heller

C.  Age and Physical Disability

Brief for American Academy of Pediatrics et al. as Amici Curiae in Support of the Petition for Writ of Certiorari, District of Columbia v. Heller,

Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller

D. Sexual Orientation

Brief for Pink Pistols, et al. as Amici Curiae Supporting Respondent, District of Columbia v. Heller,

Exercise: Subjectivity in Forming Policy Views

Exercise: Empirical Assessments, Personal Risk Assessments, and Public Policy

Chapter 11

Applying the Affirmed Right to Arms 

A.  The Aftermath of Heller in the District of Columbia: Intermediate Scrutiny

Heller v. District of Columbia (Heller II)

B.  The Aftermath if McDonald in the City Of Chicago: Historical Inquiry, Then Nearly Strict Scrutiny Toward The Core

Ezell v. City of Chicago

Exercise: Pressing the Edges of the Abortion Analogy

C.  An Alternative Methodology: Substantial Burden

Nordyke  v. King

D. The Presumptive Legitimacy of Disarming the Untrustworthy: Analogizing From Heller

United States v. Skoien

E.  The Second Amendment and the Gun Control Act of 1968

United States v. Marzzarella

Exercise: Soldiers and Second Amendment Scrutiny

F.  Guns In Common Use and the State Courts

People v. James

G. Child Access Prevention Laws

Commonwealth  v. Runyan

H.      The Right to Bear Arms and Carrying Handguns for Self-Defense

Peruta  v. County of San Diego

Exercise: In-state Concealed Carry

I.   Regulating the “Terror Gap”

Exercise: The Right to Bear Arms vs. Terrorism Concerns

J. Gun Regulation, Local Autonomy, and Urban Violence

Exercise: Adapting the Right to Bear Arms to Local Circumstances

K. Tyranny Control as a Justification for the Modern Right to Bear Arms

Silveira v. Lockyer

Exercise: Litigation Strategies and Ethics on Controversial Topics

Table of Cases

Table of Statutes and Constitutions

Table of Authorities

Index

PART THREE (ON-LINE)

SPECIAL TOPICS ON ARMS AND SELF-DEFENSE

Chapter 12

Social Science on Guns and Self-Defense

Chapter 13

International Law

A.  Modern human rights treaties and other documents

1. United Nations General Assembly Resolution on the Definition of Aggression
2. African Charter on Human and People’s Rights
3. European Convention on Human Rights

B.  International Gun Control Treaties and Documents

1. Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects
2. UN Human Rights Council on the international right of gun control
3. Nairobi Protocol
4. Organization of American States

CIFTA. Convención Interamericana Contra La Fabricación Y El Tráfico Ilícitos De Armas De Fuego, Municiones, Explosivos Y Otros Materiales Relacionados.

C.  The Founders of International Law

1. Francisco de Victoria
2. Francisco Suárez
3. Hugo Grotius
4. Samuel Pufendorf
5. Emmerich de Vattel

D. Genocide

Antonio Cassese, The Various Aspects of Self-Defence

David Kopel, The Genocide Convention and the Right to Arms to Resist Genocide

E. A Global Second Amendment?

Chapter 14

Comparative Law

A.  National Constitutions

1. Constitutional Rights to Arms

Mexico

Haiti

Guatemala

1. Constitutional right of self-defense
2. Constitutional self-defense against tyranny
3. Constitutional security against home invasion

B. Comparative Studies

Franklin E. Zimring & Gordon Hawkins, Crime is Not the Problem: Lethal Violence in America

Martin Killias

David B. Kopel, Carlisle Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

C. United Kingdom in Modern Times

D. Japan

E. Nazi Germany

F. Switzerland

Chapter 15

Detailed Explanation of Firearms and Ammunition

A.  A Brief Introduction to the Parts of a Firearm

B.  Ammunition

1. Bullet
2. Case
3. Primer
4. Gun Powder

C.  Firearm Features

1. Firing Mechanism
2. Magazine
3. Safety Devices
4. Firearm User Safety

D. The Major Types of Firearms

1. Handguns
   1. Semi-Automatic Pistols
   2. Revolvers

                          i.          Single Action Revolvers

                        ii.          Double Action Revolvers

1. Legitimate Uses of Handguns
2. Criminal Uses of Handguns
3. Rifles
   1. Bolt-action
   2. Semi-Automatic
   3. Lever-action
   4. Single-shot
   5. Characteristics of Rifles
   6. Legitimate uses of rifles
   7. Crime with rifles
4. Shotguns
   1. Shotgun Shells
   2. Types of Shotguns
   3. Legitimate Uses of Shotguns
   4. Crime with shotguns
5. Specialty Types of Firearms And Accessories
   1. Muzzleloaders
   2. Machine Guns
   3. Silencers or Suppressors
   4. Armor-piercing Ammunition
   5. Air Guns
   6. Paint Guns
   7. Non-gun Arms

Preface

While this book proceeds chronologically, we expect that many users will approach the material out of sequence. Indeed, we have done so in our own classes. For example, it can be very effective to launch right into contemporary gun-law issues by starting with the Supreme Court’s major cases on the Second Amendment, District of Columbia v. Heller, and McDonald v. Chicago in Chapter 9, followed by chapter 11 for post-Heller issues. It is also effective to assign the chapters covering the 17th and 18th century in conjunction with coverage of Heller and McDonald. This approach illuminates the originalist historical analysis in both cases. The most relevant original materials for Heller (from English origins to the first decades of American independence) appear in Chapters 2 through 5. The original materials relevant to the Fourteenth Amendment are in Chapter 6.

The book is sufficiently modular to accommodate instructors who wish to use particular chapters as part of more general courses, e.g., criminal law, constitutional law, or jurisprudence. For example, someone teaching criminal law might use Chapters 7 and 8 (covering the main federal gun control statutes) for a discrete segment on firearms violations. The treatments of Heller and McDonald in Chapter 9, and the material on standards of review in Chapter 11, are a nice vehicle for examining various general modes of constitutional decision-making. The material in Chapter 10 is a good choice for showing how the perspectives of divergent communities can affect assessment of legal and constitutional issues.

Instructors interested in particular policy topics, such as gun shows, import restrictions, handgun carry permits, or “assault weapons,” will find sections covering them. Of course, the index will also highlight discrete treatments of such topics.

The Notes & Questions in the book frequently raise forward-looking issues and core questions that relate to current controversies. Some of the Notes & Questions are designated “Connection Questions” (CQ) to indicate their relevance to cases or topics in other chapters.

While the American debate on gun rights typically uses “the Second Amendment” as a shorthand for those rights, much of the legal history, and many of the contemporary legal battles, involves state constitutions. Today, 44 state constitutions have right-to-arms provisions. The book covers the state right-to-arms issues in depth, both for their intrinsic importance, and because the state cases sometimes provide guidance or background for understanding the Second Amendment. Because state issues appear throughout the book, readers should use the Table of Statutes and the Index to find all the material on any particular state.

An Overview of the Book

Chapter 1 explains how firearms function, and describes the major types of firearms. Chapter 1 also outlines the general scope of modern American gun laws, including variations among the states. The Chapter includes an Appendix of state constitutional provisions on the right to arms. The next nine chapters tell, in generally chronological order, the story of the development of gun regulation and gun rights in the United States.

The Second Amendment right to arms is widely viewed as a historical successor to the English right to arms, which was codified in the Declaration of Rights of 1689. Chapter 2 examines the historical and political background of the English right and English gun laws. It also explores the religious and philosophical background of the ideas of armed self-defense and a citizen militia. The chapter begins early Chinese philosophy, then covers ancient Greece and Rome, Judeo-Christian perspectives, medieval thought, and the Renaissance.

Chapter 3 examines the American colonial experience and the American Revolution. Colonial militias were important military and political institutions, and the militia regulations provide insight into the early understanding of the public and private roles of arms possession. The chapter also covers the British efforts to confiscate American firearms and gunpowder that played a major role in precipitating the American Revolution. Finally, the chapter covers the War of Independence and form of U.S. government before 1789.

Chapter 4 discusses the framing of the U.S. Constitution and its Bill of Rights. Ratification of the U.S. Constitution in 1789 created a more active and powerful federal government; among those new powers were direct federal control over the militia. The Bill of Rights was added to the Constitution in 1791, including a Second Amendment that affirmed the necessity of a well regulated militia, and recognized the right of the people to keep and bear arms. Chapter 4 examines the debates over the Constitution’s ratification, the drafting history of the Second Amendment, and the way the American right to arms was viewed by the earliest constitutional commentators.

Chapter 5 covers the first seven decades of the new republic. This period saw an evolution of the American understanding of both the role of militias and of the individual right to arms. The chapter starts with the political crisis of 1798-1800 that brought several states to the brink of armed resistance to the Federalist political agenda. The War of 1812 displayed both strengths and weaknesses of American militias. Chapter 5 also chronicles a significant transition in the direction of gun regulation in America. While colonial and revolutionary era gun control laws were mainly concerned with forcing people to own and carry guns, by the 1820s laws prohibiting people from carrying concealed guns and knives began to emerge, particularly in the South. These laws gave rise to the first judicial opinions addressing the scope of permitted regulation under the right to arms guarantees in the federal and state constitutions. The predominant view of the courts of this period was that the constitutional right to arms included an individual right to carry common weapons for self-defense, although legislatures could regulate the right. Many courts for example concluded that legislatures retained the power to prohibiting the concealed carrying of weapons. The Southern states continued the colonial practice of enacting highly restrictive laws prohibiting the ownership or carrying of guns by slaves and, sometimes, by free blacks, setting the precedent for broader restrictions after the Civil War. Abolitionists invoked the Second Amendment to complain about the disarmament of Free Soil settlers in Kansas in the 1850s, and to argue that the slavery and the Second Amendment were incompatible.

Chapter 6 begins with the period following the Civil War, proceeds through Reconstruction, and ends at the turn of the 19th century. In this period, the Fourteenth Amendment was adopted to protect individual civil liberties against state interference—and especially to combat abuses of newly freed slaves and their supporters. The Chapter offers examples of the many sources suggesting that the Amendment was intended to secure the individual liberties guaranteed in the federal bill of rights (including an individual right to arms for self-defense) against state infringement by state and local governments. The Chapter also tracks the decline of Reconstruction, and the failure of the initial promise of the Fourteenth amendment. Material includes the decisions by the U.S. Supreme Court narrowly interpreting the Fourteenth Amendment, rendering it of little value as a guarantor of individual liberties; adoption by the Southern states of restrictive laws of the Jim Crow era; and affirmation by Southern courts of increasingly restrictive (and often racially discriminatory) regulation of firearms—particularly the carrying and ownership of inexpensive handguns. As labor unrest grew in the North, some states prohibited mass armed parades, and the Supreme Court upheld such bans in Presser v. Illinois. The Court was, however, quite protective of armed self-defense by individuals, in “The Self-Defense Cases” which arose in federal territories. 

Chapter 7 examines the early twentieth century. In this period, gun control for individuals expanded beyond the South, as Northern states, concerned about the labor movement and unassimilated immigrants, adopt a variety of handgun control laws. The Chapter also marks the emergence of the first Federal gun control laws. In the 1930s, the federal government imposed regulation on commercial gun sales. The most significant of these was National Firearms Act of 1934 (NFA), which severely restricted ownership of a few classes of firearms viewed as unusually dangerous, such as machine guns and short shotguns. Chapter 7 is anchored by the Supreme Court’s treatment of a Second Amendment challenge to the NFA in United States v. Miller. Miller is a short and ambiguous opinion that declared that exercises of the Second Amendment right had to have a “reasonable relationship” to the maintenance of a well-regulated militia in order to be protected. For decades afterward, there was argument about whether Miller meant that the type of gun had to be suitable for a militia in order for it to be protected by the Second Amendment, or whether the individual had to be in a militia in order to have Second Amendment rights.  After Miller, lower federal courts began to develop a state-government-focused conception of the Second Amendment that gave little or no credence to individual challenges to federal or state gun regulations.

Chapter 8 is the longest chapter in this book. It covers the balance of the 20th century. The scope of federal firearms regulation grew dramatically in this period, with the passage of several major statutes, including the federal Gun Control Act of 1968, the Firearms Owners Protection Act of 1986, and the federal “assault weapons” ban that was enacted in and which expired in 2004. The Chapter offers a detailed treatment of the various issues that arise under the modern statutes and accompanying regulations, the vast majority of which remain valid even after the Supreme Court’s 2008 affirmation of the individual right to keep and bear arms in District of Columbia v. Heller. During the late 20th century, lower federal courts rejected any version of a Second Amendment right that would impose meaningful limits on gun regulation. However, the tenor of judicial treatments of the issue began to change towards the end of the century, as scholarly and political debates bolstered the individual rights theory. The Chapter includes section of social and political history that elucidates the most important bills, statutes, controversies and political battles of the period. This history provides important context for the Supreme Court’s ultimate affirmation of the individual right to arms.

Chapter 9 is dedicated to the landmark decisions in District of Columbia v. Heller and McDonald v. Chicago. In these decisions, a five-Justice majority of the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense; that the Second Amendment right is a fundamental right made fully applicable against the states by the Fourteenth Amendment; and that handgun bans violate the Second Amendment.

Chapter 10 examines issues of gun rights and gun regulation from the special perspectives of race, gender, sexual orientation, and disability. The materials are mainly drawn from the amicus briefs filed in Heller by a variety of interest groups.

Chapter 11 addresses the aftermath of Heller and McDonald. This chapter covers several of the most important constitutional questions left unanswered by the two Supreme Court decisions, and how these topics are being addressed by state and federal courts. While, as Chapters 5 through 7 showed, state court case law on state right to arms provisions has been developing for almost two centuries, serious doctrinal development of the Second Amendment began only after Heller. Courts today are grappling with issue such as the standard of review, what types of arms are protected, and the right to “bear” arms in public places. Students and professors who want to explore gray areas in emerging legal doctrine will find Chapter 11 of particular interest.

The printed textbook ends with Chapter 11, but owners of the printed book have free access to three additional on-line chapters. These chapters are:

Chapter 12. Social science about the benefits and harms of firearms possession and use.

Chapter 13. International gun control law, from sources such as the United Nations, the Organization of American States, and other treaties and international law documents. The Chapter also covers the “Classical” period of international law, in which philosophers such as Grotius, Puffendorf, Vattel, Victoria, and Suárez built the foundations of international law partly by extrapolating from general principles of the rights and the limits of personal self-defense.

Chapter 14. Comparative gun control laws. Examining the gun laws of several nations, including Canada, the United Kingdom, Japan, Nazi Germany, Switzerland, and South Africa.

Chapter 15. While Chapter 1 provided an introduction to the different types of firearms and ammunition, and how they function, this Chapter covers the same topic in greater depth and detail. It includes many illustrations and diagrams.

While the on-line chapters are available through a locked website maintained by Aspen Publishers, there is also a free, public, website for this textbook, http://www.firearmsregulation.org. This public website provides numerous additional resources, including suggested topics for student research papers, a comprehensive list of published law review articles and ALR Annotations on arms-law topics, and links to numerous Internet resources on firearms law and policy.

Publishing Student research

Many students will use this book in upper-level classes in which they will write research papers. The public website offers some ideas for paper topics, as well as bibliographical and resource guides to help you get started.

Because Second Amendment doctrine is still in an early stage of development—especially in comparison to its closest analogue, the First Amendment, in which doctrinal development began in the 1930s—there are many opportunities for law student papers to make a genuine contribution to legal knowledge and analysis. If you write a good paper for your class, send it to us for consideration for publication on the public website.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament’s refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of “commerce…among the several States” is a separate issue. The original meaning question for the mandate’s penalty is a commerce issue, not a tax issue.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

The candidates’ answers were as follows:

Bachmann: Yes.

Cain: Yes.

Gingrich: Yes. Cooper v. Aaron‘s assertion of judicial supremacy was wrong. Following the precedent of the first Jefferson administration, I would abolish some federal judgeships. But I am not as bold as Jefferson. “I would do no more than eliminate Judge Barry in San Antonio and the ninth circuit. That’s the most I would go for. (LAUGHTER) (APPLAUSE). But let me say this. That’s part of the national debate. That’s not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States.”

Paul: No. Violence and murder should be dealt with by the states. The federal police are already too numerous. I support a bill to deprive lower federal courts of jurisdiction over abortion cases, so that state restrictions on abortion would be immune from judicial review.

Romney: No. I would focus on appointing judges who would return abortion regulation to the states. The George proposal “would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it’s reasonable that something of that nature might happen someday. That’s not something I would precipitate.”

Personally, I agree with the Romney approach. Moreover, the next President is going to have to address a fiscal crisis that will devastate the United States economy soon if it is not solved. Dealing with the fiscal crisis is going to be quite difficult politically, in part because there are many millions of people who benefit from the current, and unsustainable, levels of federal spending. The tax consumers may be very highly resistant to any reduction in the amount of money that flows to them. So there will be no shortage of national division and acrimony. Thus, 2013 would be an especially bad time to precipitate a constitutional crisis over a social issue. The answers of Romney and Paul displayed prudence, which I think is a very important characteristic for a President, and the answers of Bachmann, Cain, and Gingrich did not.

As for the Ninth Circuit, Gingrich has been saying the same thing since March, according to Politico. I have not found anywhere where he has provided details on this plan, but perhaps it would involve merging the 9th circuit states into the 8th and 10th circuits, since they border the 9th. The Politico article is not entirely clear, but it appears that Gingrich has claimed that he could get rid of the 9th circuit by signing an executive order. This would be plainly unconstitutional, a usurpation of power worthy of impeachment. Article III gives Congress, not the President, the power to “ordain and establish” the inferior federal courts. During the Jefferson administration, the Judiciary Act of 1802 repealed the Judiciary Act of 1801, in which the lame duck Federalist Congress had created many new federal judgeships, to which President John Adams had appointed Federalists in the waning days of his administration. As President Jefferson recognized, the choice to eliminate federal judgeships belongs to Congress, not the President acting by himself. [Update: a commenter says the video (for which a link was not provided) shows that Gingrich was not claiming that he could abolish the 9th Cir. by executive order. I looked on the Internet, and did not find a video of the March 25 Iowa speech by Gingrich. There's a video of a speech earlier that month in Iowa, in which he criticizes the 9th cir. but does not call for its abolition.]

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

Labor Day is a day to remember that labor rights are human rights, and that the right of Americans to come together in voluntary organizations, including labor unions, is part of the core of American freedom. On Veterans Day or Memorial Day, we remember that the freedoms we enjoy today are the fruit of the sacrifices made by our armed forces. We remember this even if we disagree with some military actions, or even if we know that some past or present military leaders were bad people. Likewise, on Labor Day, even if we recognize the harmfulness of much of the current agenda of SEIU, NEA, and so on, we should remember the historic debt that all Americans owe to the Labor movement. One part of that debt is the essential role that labor leaders such as Walter Reuther and Lane Kirkland played in providing bipartisan support for resistance to the evil Soviet empire, an empire whose ultimate objective was to reduce all the workers of the world to slavery.

Moody describes D.C. as “a city that bans carrying firearms.” That’s not exactly correct. The D.C. Code generally prohibits carrying a firearm “without a license issued pursuant to District of Columbia law.” D.C. Code § 22-4504. It is true that in practice, the D.C. government virtually never issues carry licenses to citizens. However, the Code makes various exceptions to the license requirement, including that “The provisions of § 22-4504 shall not apply . . .to officers or employees of the United States duly authorized to carry a concealed pistol . . .” § 22-4505(a).

Thus President Perry could simply authorize himself to carry a concealed pistol. For good measure, he could likewise authorize the entire White House staff, or indeed every single employee of the United States government, to also carry a concealed pistol in D.C.

As the Moody article points out, President Perry could ask the D.C. police to deputize him, in order to take advantage of the D.C. law allowing the police to carry guns, but President Perry would have no practical need to ask the D.C. police to use their discretion to grant him the ability to do something he can do without their permission anyway.

UCLA’s Adam Winkler suggests that President Perry could issue an Executive Order authorizing him to carry. Executive Orders can apply solely to the Executive Branch of the federal government. An Executive Order could be  one mechanism (although certainly not the only one) by which President Perry could “duly authorize[]” gun carrying by himself or Executive Branch employees. However, if the D.C. Code did not have the exception for federal  employees, then it’s doubtful that an Executive Order could overcome a carrying ban enacted by the D.C. City Council. One might argue that since the entire D.C. city government, with its limited home rule powers granted by Congress, is part of the federal government, the President can by Executive Order negate the operation of a D.C. City Council law. However, as far as I know no President has ever tried to go so far with an Executive Order. And an Executive Order certainly cannot violate a specific congressional statute, including the statute granting partial home rule powers to the D.C. City Council. (The congressional grant of home rule actually excluded criminal law, so D.C. styles its anti-gun laws as “health” laws, and the courts have thus far let D.C. get away with it. However, even if the D.C. gun laws are arguably ultra vires, an Executive Order would not seem to be the appropriate mechanism to deal with them.)

Moody also raises the issue of the Secret Service:

The Secret Service, however, could make a very serious argument that the president shouldn’t be carrying a weapon for his own protection. Remember, a spirited debate broke out in the days leading up to President Obama’s inauguration over whether he would be forced to surrender his Blackberry for security concerns. (In the end, Obama got to keep his Blackberry, but under certain conditions.) If a Blackberry’s almost off limits, you can imagine how the Secret Service might react if the president wanted to pack a Glock.

Well, President Obama’s decision to accept some restrictions on his Blackberry was his choice, presumably made after considering the advice of the Secret Service. The President is in charge of the Secret Service, and not vice versa. The Secret Service cannot “force” him to do anything. They’re not a Praetorian Guard. So when First Lady Eleanor Roosevelt refused to allow the Secret Service to drive for her, or even accompany her, as she traveled around the United States, there was nothing the Secret Service could do about it. The Secret Service did urge her to carry a concealed handgun, and learn how to use it, and she took their advice. After the assassination of President William McKinley, new President Theodore Roosevelt started carrying his own handgun for protection.

As far as we know, there is not a shred of evidence that concealed carry by either Roosevelt had any negative impact on their security. So there’s no reason to imagine that the Secret Service would have a good reason to urge President Perry not to carry a handgun. Unlike a Blackberry, a handgun does not send wireless communications which could be intercepted by foreign spies, nor does it contain a GPS device which can reveal the user’s location.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention.

Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.

Reagan’s Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don’t want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:

“I don’t believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they’re trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.

“I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].

“I  believe  in  state’s  rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”

A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan’s vision, by returning much of the control of federal welfare programs to the states.

Some ignorant people claim that “state’s rights” is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the “States’ Rights to Medical Marijuana Act” in the 107th, 108th, and 109th Congresses.

Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state’s rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the ”kick off” for Reagan’s general election campaign was an appeal to racists are demonstrating that they don’t bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don’t tell their audience that the “stereotype” of welfare recipients is wrong,  and that “the overwhelming majority” of them want to work.

The facility is about 90 miles north of Salt Lake City, near Tremonton, Utah. It’s remote, but well worth a detour. A round of “rifle golf” works like this: Accompanied by a guide, you drive  a six-mile loop on a dirt road on a sheep ranch. Along the way, you stop at four different shooting stations. The stations have tables and chairs for benchrest shooting. At the first station, your first target to shoot at is a black wooden silhouette of a moose, at 442 yards away. At the place where a hunter would place an ideal shot on the moose (at the center of the heart/lungs area), there is a hanging half-circle white metal plate, about 11 inches in diameter. If you hit the plate on the first shot, that’s scored as an “eagle” (2 under par). If you get the plate on the second shot, that’s a birdie (1 under par). If you miss the first two shots at the distant target, you take your third shot at something closer; on “hole” 1, that’s a deer at 285 yards.

Each shooting station has three “holes.” So at the first station, you would also try for a grizzly bear (384 yards) and a coyote (169 yards), and then for another moose (511 yards) and a grizzly (192 yards). Your guide will have a very high-powered spotting scope, and give you advice (e.g., “your first shot was perfectly centered, but an inch too high”). For all shooting, you’re one side of a valley, shooting at a slope on the other side.

Shooting stations 3 and 4 are the same, with targets ranging from 558 to 188 yards. Station 2 has a single target, a moose at 1000 yards. You get two shots, and if you hit either, strokes are deducted from you total score. If you get it on the first shot, you win a prize.

What I’ve just described is the “classic” course. If you’re already an excellent long distance shot, you can shoot at the “master” targets at each shooting station. The long shots are up to 875 yards, and the shortest is 399. On the thousand-yard hole, your target can be up to 1250 yards away.

Rifle golf provides shooting challenges that most people can never try except when actually hunting. For most people, it’s difficult to find a shooting range longer than 200 yards. Even if you’re lucky enough to live near a 600 yard range, at the range you and the target will both be at the same elevation. In contrast, the rifle golf targets are at a wide variety of elevations, either higher or lower than the shooter. Thus, it is all the more challenging to estimate how far the bullet will drop due to gravity. (If your rifle scope is zeroed in for 200 yards, then a shot at a target 200 yards away should hit right at the point indicated by the crosshairs on your scope. If the target is further away, then you will need to aim above the cross-hairs point, because as the bullet travels further, it slows down from air friction, and drops more and more due to gravity.) Of course for any given shot, the wind may be blowing, and you’ll have to take that into account in placing your shot.

An ethical hunter must have the realistic confidence that a particular shot can be placed where it will quickly kill the animal (either the heart/lungs, or the brain). A shot that hits the animal somewhere else (e.g., the guts or  a leg) is a failure; the animal may eventually die from infection, but not necessarily quickly. So for hunting, if you see an elk 275 yards away, you must know whether you and your rifle have the ability to make an ethical shot at that particular distance. Rifle golf is an outstanding way to get a sense of your abilities for long distance shots, so that you can take ethical shots, and avoid unethical ones. Indeed, rifle golf raises the bar somewhat higher, because the white plates constitute only a fraction of the parts of the animal that would constitute an ethical shot. So if you can consistently hit the plate at a given distance, then you can be confident that you can take ethical shots at that distance. (After accounting for other factors, such as whether your field rest of the rifle (e.g., shooting sticks) are as steady as a rifle golf bench.)

Whether or not you hunt, rifle golf is great fun for long distance shooting. Almost any centerfire caliber of .223 or above should be usable for the classic course. Just be sure that your rifle has a scope on it.

Compared to golf golf, the Spirit Ridge Rifle Golf clubhouse is primitive, with running water and toilets, but not much else. So plan on bringing all the gear you need. Presuming you don’t show up with an ATV, you’ll need to rent one of those at the course, and it’s worth paying extra (including a tip) for a guide to go with you, especially your first time around the course.

Spirit Ridge Rifle Golf is an extraordinary shooting experience. I’ve been to shooting facilities all over the United States, and never found anything remotely comparable to rifle golf. I very highly recommend it.