The Volokh Conspiracy

Chris Moody attempts to analyze the issue for The Ticket. The analysis could have been improved by reading the laws of the District of Columbia.

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.

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.

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.

If you’re interested in long distance rifle shooting, or in hunting with a rifle, I highly recommend that you check out the Spirit Ridge Rifle Golf facility, in Utah. The “golf” part of the name is really just part of the rules for how your shots are scored. Other than that, it’s all rifle and no golf, and it’s one of the best opportunities I’ve ever seen to test one’s rifle skills.

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.

This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to come, that will be posted throughout the week. My essay examines some of the questions that the Court will face in granting cert., the tax issue, and the issue of the state coercion in Obamacare’s new Medicaid mandates. Conspirators Adler, Kerr, and Somin are among some other scholars who have essays that should be posted soon.

Among the offerings at this summer’s Colorado Shakespeare Festival, at the University of Colorado at Boulder, is the Comedy of Errors. The show is clearly a crowd-pleaser, provoking many laughs from most of the audience. The people with whom I saw the show, who generally have pretty good taste in theater, thought it was hilarious. So statistically speaking, if you see the show before it concludes its run in mid-August, you will probably have a great time. That said, I couldn’t stand it, and thought it was one of the stupidest things I’ve ever seen on stage.

Comedy may be Shakespeare’s first play, and it has many of the elements that appear in his later comedies. A pair men are identical twins, separately shortly after birth. Each man has a servant, and servants are also identical twins. Each twin pair not only looks alike, they have the same name. The twins from Syracuse (modern Italy) show up in Ephesus (modern Turkey) and much confusion ensues from mistaken identity. There are some small fights, then a big one, and in the last scene, everything is straightened out, and everyone lives happily ever after.

While modern scholars credit Comedy with more social and political complexity than did some earlier scholars, and there’s plenty of witty dialogue, it’s fair to saw that Shakepeare’s comedy-writing skills improved after this early effort.

Among the virtues of the CSF’s production this season is an excellent set, which nearly rises to the level of being a character. Impressively, the same set is also used for CSF’s parallel production of Romeo & Juliet. The entire cast is hard-working and energetic; the two actors who play the servants (Dromio 1 and Dromio 2) have vivacious comic energy. All the costumes are very good, and help the audience remember who’s what.

However, the CSF’s version of Comedy of Errors appears to have made its artistic decisions based on the recommendations of Eric Cartman, the puerile 4th-grade boy from the South Park cartoon:

“OK, most people can’t understand Shakespeare, because it has too many words. So you need to crank up the visual humor. First, put in a lot of farts and fart jokes. In fact, put in a really long fart that is so powerful that everyone on stage passes out. The audience will love it.” (They did.)

“Then, do a lot of pointless stuff that has almost nothing to do with the play. After intermission, have one of the characters throw bags of goldfish crackers to the audience.”

“Every good play has lots of dick humor. So one of the characters should stick a fish doll in pants, and have it hanging down for most of the show. Also, if another character says something about sex, he should grab his thing while he says it.”

“You know that scene where the wife has an argument with the prostitute that her husband has been visiting? They should pretend that they’re sumo wrestlers. Because everyone knows that sumo wrestlers are almost the funniest thing in the world. Except for farts.”

“Speech impediments are funny too. Whenever the Duke of Ephesus speaks, he should add an extra syllable for any word ending with ‘s’. So he says ‘Ephesus’ as ‘Ephesus-es’. That will be just as hilarious in Act 5 as it is in Act 1.”

“Finally, the style for most of the play should be Three Stooges. Except these days, people actually hitting each other would upset the audience. So just use a lot of fake punches, and have somebody clack two boards together at the moment of impact.”

Early in the play, one character marvels, “This is the fairyland.” Yet the CSF’s production of Comedy works relentlessly to dispel  theatrical enchantment, to constantly break through the fourth wall, and to remind the audience at every opportunity that they are watching Shakespeare-for-people-who-thought-Shakespeare-for-Dummies-was-too-hard-to-read. Compared to this Saturnalia of moronic vulgarity, Blazing Saddles seems like, well, a Shakespeare play.

In this iVoices.org podcast, Rob Natelson explains why unilateral presidential creation of new debt is: 1. Utterly contrary to the Constitution’s structure of limiting executive power. 2. Directly contrary to the text of the 14th Amendment. President Obama, to his credit, declaimed any unilateral power to raise the debt ceiling. But many people–some of whom have taken oaths to uphold the Constitution, or who profess respect for constitutional law–have insisted that the President has unilateral debt power. And since the current deal that is being rushed through Congress may slightly delay the insolvency of the federal government, but not prevent it, understanding what the 14th Amendment says about the issue remains important. Rule of law, not an elective dictatorship.

The annual “time machine” episode of Colorado Inside-Out garners a threepeat, winning the best documentary award for the third year in a row, from the Heartland Chapter of the National Academy of Television Arts & Sciences. This year’s win is also a Triple Crown, with Emmy awards for best sound, and best program. Watch the triple-triple award-winning 1935 episode of CIO (produced in 2010), including Kopel as law professor Israel Ben Koplowitz, a Democratic supporter of Al Smith who is skeptical of FDR. Some other episodes: 1951 (produced in 2011), 1959 episode (Emmy winner, produced in 2009), 1858 episode (Emmy winner, produced in 2008).

1. Does anyone know of any polling data which has data on whether Americans who have favorable, or strongly favorable, views of Israel are more likely to support Second Amendment rights, own guns, etc.? I suspect that this is case for non-Jewish Americans. Even for American Jews (who tend to support Israel, and to favor gun control) it would not surprise me if Jewish gun-owners are more pro-Israel than non-owners.

Please supply data, and feel free to comment on data that has been supplied by other commenters. But don’t use the comments just to speculate.

2. From Edmund Burke’s Mar. 22, 1775, speech to Parliament:

Sir, during that state of things, Parliament was not idle. They attempted to subdue the fierce spirit of the Welsh by all sorts of rigorous laws. They prohibited by statute the sending all sorts of arms into Wales, as you prohibit by proclamation (with something more of doubt on the legality) the sending arms to America. They disarmed the Welsh by statute, as you attempted, (but still with more question on the legality) to disarm New England by an instruction. They made an Act to drag offenders from Wales into England for trial, as you have done (but with more hardship) with regard to America.

Does anyone know of good sources discussing the attempted disarmament of the Welsh, and whether it was successful?

Commenters: please stay on topic.

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment’s prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun.  He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home.  Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

…

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff’g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize.  Id. at 554.  A list of firearms was included in the affidavit, but not attached to the warrant.  Id.  Only lawful firearms were found.  Id. at 555.  The homeowners later filed a civil rights action for damages.  Id.  The Supreme Court upheld the Ninth Circuit’s conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity.  Id. at 563-566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment.  Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd.  The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago’s ban on firing ranges is subject to not-quite-strict scrutiny.

Here’s how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . .” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages.

When a law is “alleged to infringe Second Amendment rights,” there is a two-step inquiry, beginning with the question “Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449.”

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038-42.

Courts should follow the Supreme Court’s lead and treat “original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610-19; McDonald, 130 S. Ct. at 3038-42. ” [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215-30, 257-67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285-87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People“: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824-25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11-17, 50-54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266-70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the “scope” question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. “[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454-72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372-75 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1571-73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979-80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042-44 (2008).”

The right to arms includes the right to practice with arms: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having “quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations’ by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order’.” In addition, “‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.’ (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880)).”

So what exactly is the standard of review?

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases…but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L. REV. at 1572.

So “we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” This amounts to what the court calls “not quite ‘strict scrutiny.’” Or it could be called strict scrutiny light. A “an extremely strongly” state interest, rather than a “compelling one”; and “a close fit” rather than “narrowly tailored.”

For “laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.” The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The “plaintiffs are the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller . . .The City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.”

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you’re conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You’ll never get to the level of a free ticket, but the points expire if you don’t use them. So use them for magazine subscriptions. I’ve been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there’s a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn’t available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it’s hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you’ll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient tone would imply, and that the coverage has numerous blind spots and biases. Knowing how flawed the U.S. coverage is makes me question The Economist‘s accuracy on topics for which I don’t know enough to judge the coverage. So in a sense, the less you know about something, the more useful The Economist is. For example, the latest issue had an article explaining that Poland is going full speed ahead with natural gas development via fracking. Because I previously had never thought about Polish natural gas, I learned a lot by reading the article. Overall, The Economist is still a strong source for weekly world news, as long as you don’t take its editorial judgements too seriously.

If you read French, Courrier International is definitely worth a trial subscription. This Paris-based weekly takes stories from newspapers all over the world, and translates them into French. You’ll get acquainted with many fine newspapers. I ultimately gave up on Courrier because their story and source selection leaned so heavily to the official left. If the choice is between a particular nation’s version of The Guardian vs. The Telegraph, Courrier almost always goes with the former. Their special issues were particularly tendentious and one-sided. But since tastes vary, I’d recommend that people who read French give it a try.

Le Figaro, one of the leading French daily newspapers, publishes a weekly edition for a U.S. audience. It’s well-written, and has good coverage of all the Francophone world, including African analysis that is hard to find in U.S. papers. As with The Economist and Courrier International, there’s also plenty of European news that you won’t find in the U.S. dailies. Le Figaro is right-wing by French standards, which places its approximately in the same zone as the New York Times. Le Monde, which is left-wing by French standards, also has a weekly; I’ve read occasional issues, but never subscribed, and, ideology aside, Le Figaro has bigger print and better layout.

Business and Finance: If you’re a law student, or in the same general age group, the time to start learning about business and investing is now. Don’t wait until you’ve saved $50,000 in a 401(k)  and have to figure out where to put it. The sooner you start reading and thinking about investing and business, the more you’ll see fads and bubbles come and go, and the less likely you’ll be to invest foolishly 25 years from now, or to allow yourself to be led around by a self-dealing financial advisor. Besides, whatever kind of lawyer you become (or whatever other career), you’ll almost certainly be more useful to clients and yourself if you have some background knowledge of business–whether you’re serving as a volunteer on the Board of a small non-profit, or urging your friend not to spend his life savings on program trading.

Forbes, Fortune, and Business Week remain the big three of the business magazines. Give each of them a try, and pick your favorite. I life Forbes, for excellent writing, and its pro-capitalist orientation. Barron’s is worth a trial subscription. It’s purely about investing, not about business in general. For a person just starting to think about the stock markets and other financial investments, Barron’s is a good choice. You may not want the avalance of daily information that comes in the Wall Street Journal or Investor’s Business Daily. Rather, in the learning stage, you may be better off with the weekly perspective. Especially useful are the big articles which provide the viewpoints of numerous experts on a major topic (e.g., how will the economy perform in the next 12 months?). As you’ll find, experts, even well-qualified and sincere ones, are often wrong about economic predictions. One of the reasons to start reading the business/finance press early in life is to develop a healthy skepticism about following any single expert’s advice.

Money is OK if you know absolutely nothing about money, and have to start at the very beginning.

New York City:  If you’ve ever lived there, it’s fun to stay in touch. Of course the New York Times takes care of this for plenty of readers who used to live in The City, but there are other options. New York magazine is lively and interesting, and captures the NY feel in a way that the Times doesn’t. It also sometimes has strong reporting on national politics. Also worth trying is the weekly New York Observer newspaper, which has great coverage of state and city politics. As with New York, the political slant is firmly to the left, but the factual reporting can sometimes be very good. The New Yorker remains, for eight decades running, the best cartoon magazine in the world. It has, unfortunately, also become a favorite vehicle for character assassination–sort of a highbrow version of ProgressNow. I’d trust its non-fiction articles only on topics which don’t involve U.S. politics.

Legal newspapers: Especially if you can get a law student discount subscription, the National Law Journal (general national news), Legal Times (D.C. focus), and American Lawyer (corporate lawyers) are all worth trying. The same goes for any local/regional law paper in your area, such as New York Law Journal. Because of the Internet, none of these are probably as influential as they were 20 years ago, but they’re still a good way to diversify your diet of legal news.

Daily newspaper: Coverage of legal issues in the mainstream daily press is typically horrible, with stories tending to concentrate only on who won or lost, while leaving the reader in the dark about the precise legal issue in dispute. But for general coverage of the state where you live, there is still nothing that comes remotely close to the daily newspaper. So if you live in the Denver area, you ought to be a daily reader the Denver Post; in Dallas,  the Dallas Morning News, and so on. Yes, those papers can be biased and selective, but they’re still far superior to any other single source for state and local coverage.

On top of that, I’d recommend a high-quality national newspaper. In other words, the Wall Street Journal or the New York Times. The Times has a much larger “news hole,” except for business news. But the Journal‘s new stories are much less likely to be DNC opinion essays misplaced in the news section. While both papers are well-written, the Journal is better-written. And the Journal‘s Friday/Saturday culture and leisure coverage has gotten quite good. For the Times, I’d recommend a partial weekly subscription (e.g., Monday to Friday), rather than the Sunday paper. You’ll get a better variety of stories in the weekday editions, and the weekly special section on Science and Technology is sometimes excellent.  The Sunday Times does have the Book Review, which is now more important than ever, given the harsh cutbacks in book reviews at almost every other newspaper. But you can always subscribe to the Book Review separately, if it’s important to you.

For a change of pace, London’s Financial Times can sometimes be obtained with airline points. Like the Wall Street Journal, it’s a business newspaper which covers lots of regular news, and some culture. And of course plenty of U.K. news. The editorial viewpoint might, roughly speaking, be considered somewhat similar to The Economist: supportive of free markets and globalization in general, but not at all afraid of big government activism.

Gun Week: Despite the title, published tri-monthly by the Second Amendment Foundation. Pre-Internet, the indispensible source of news on the firearms industry and the gun control issue. Even today, the best single source for people who follow the topic closely.

Bonus on-line reading: One of the big differences between the Wall Street Journal and the New York Times is reporting on the United Nations. The Journal has done excellent investigative reporting on the U.N. The Times has also done some good work, as in coverage of the “peacekeeping” fiasco in the Democratic Republic of the Congo. But Times coverage of U.N. HQ often consists of running p.r. interference on behalf of the U.N. For daily coverage of the U.N., by far the best source in the world is the indefatigable Matthew Lee, of the on-line Inner City Press. Lee’s personal viewpoint is definitely from the Left, but he is relentless at digging into the corruption, lies, and human rights abuses perpetrated by an organization which too often escapes serious journalistic scrutiny, all the more so because of budget cuts in international coverage in most of the rest of the media. To his credit, the United Nations Development Programme temporarily convinced Google News to disappear Inner City Press.

p.s.: In response to some of the comments: Legal Times and National Law Journal merged last year; all the more reason for law students to give NLJ a chance, I guess. The above periodicals are only a small fraction of the periodicals to which I subscribe, and those to which I’ve subscribed in the past. Not included are categories including public affairs (e.g., Mother Jones, Natonal Review, Reason), Congress (National Journal etc.), hobby/lifestyle (Sky & Telescope), sports (Field & Stream), or scholarly journals. I’ll write about some of those when mood strikes.

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”

Today’s Supreme Court decision in Brown v. EMA casts doubt on one of the shibboleths of gun prohibition.

Since the 1960s, some social scientists have been attempting to prove that guns cause violence. They do not make this claim in the straightforward sense that guns, as tools, can be used for malign purposes–for example, that a criminal with a gun might attempt a robbery which would he would consider too risky if he did not have a gun. Rather, the claim is that the presence of makes ordinary people more aggressive, anti-social and violent. Thus, as one study put it, “the trigger pulls the finger.” The hypothesis is known as “the weapons effect.”

Continue reading ‘Brown v. EMA casts doubt on the “weapons effect” justification for gun control’ »

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

In January, Delta Airlines announced that Saudi Arabian Airlines is joining Delta’s SkyTeam network of international airline partners. Yesterday, WorldNet Daily reported that Delta employees would be enforcing a no-Jews policy when checking in passengers on SAA flights from the United States to Saudi Arabia.

I looked around the web for verification, and found the following: In 2004, a Saudi government website, promoting visits to Saudi Arabia, did state a “no Jews” policy. Apparently in response to extensive U.S. criticism, that statement was removed. The visa required for entry to Saudi Arabia mandates that the applicant disclose his or her religion. The typical advice for American visitors is to write “non-Muslim” or “Christian.” However, a 2007 article in Commentary magazine by scholar Joshua Muravchik reports on his recent visit to Saudi Arabia; he wrote “Jewish” on his visa application, and was nevertheless granted a Saudi visa.

It does seem to be widely reported, without contradiction, that Saudi authorities will deny visas to anyone who has an Israel entrance or exit stamp on his passport. This category would include not only Jews who have visited Israel, but also the many Christians who visit the Holy Land, as well as business travelers to Israel. Several other African and Asian governments apparently have similar policies.

At airport check-in in the United States, a responsibility of the U.S. airline which is checking in travelers for an international partner airline is to verify that the travelers have the appropriate documentation required by U.S. law (e.g., a passport) and by the foreign airline (e.g., an entry visa from the Saudi government).

The WND article reprints two letters from Delta Airlines to a person who raised questions about the above. Essentially, Delta’s position is that they just enforce whatever the destination government requires, and if you don’t like  the destination government ‘s discrimination, go complain to the U.S. State Department.

I would have preferred an answer to the effect of “We have confirmed that Saudi Arabia does not discriminate against Jewish visitors, or people who have visited Israel, and we would never partner with an airline which would require us to enforce such reprehensible policies.”

Saudi Arabian Airlines is government-owned (with some ancillary services, such as catering, being privatized). Delta Airlines is exercising a choice to make its employees complicit in the enforcement of the Saudi government’s policies of hatred and discrimination against anyone who visits Israel. If Delta’s business alliance with the Saudi government is conditional on that government not reinstating a formal ban on all Jewish visitors, Delta has not taken the opportunity to say so. When I travel, I will exercise my own choice not to fly Delta.

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

Featuring British NGO representative Leslie Vinjamuri (pro-intervention, sees no legal problem), American peace activist Robert Naiman (anti-intervention, considers the intervention unconstitutional), and me (pro-intervention, but opposed to Obama doing it in violation of the Constitution and the War Powers Act). On the RT (formerly, “Russia Today”) television program “Crosstalk.” 27 minutes.

Currently before the 9th Circuit Court of Appeals is Peruta v. San Diego, in which plaintiffs challenge the San Diego Sheriff’s refusal to issue concealed handgun carry permits to ordinary persons who wish to carry handguns for lawful self-defense. The district court held that the Sheriff’s actions were not Second Amendment violations because, inter alia, California law allows the unlicensed, open carry of an unloaded handgun. The handgun may not be loaded unless there is an “imminent” threat which would justify calling 911.

Earlier this week, I filed an amicus brief on behalf of the International Law Enforcement Educators and Trainers Association. The brief addresses the practical issue of loading and using a handgun while under imminent threat, and argues that unloaded carry is not an adequate means of self-defense. The brief includes links to videos which illustrate various points in the brief.

City of New York v. Mickalis Pawn Shop was recently decided by a unanimous 3-judge panel of 2d Circuit Judges Sack and Wesley, plus Judge Eaton (Court of International Trade) sitting by designation. The case began several years ago when New York City Michael Bloomberg brought a public nuisance lawsuit against several firearms stores located in the southeastern United States. Bloomberg alleged that the stores had violated federal gun laws by selling firearms to straw purchasers (lawful buyers who are acting as a front for a person who is prohibited from possessing firearms), and that as a result, some of the defendants’ guns had been used in crimes in New York City. The defendants argued that  Judge Weinstein, of the federal Eastern District of New York, had no jurisdiction. At various stages of the litigation, defendants dropped out, and a default judgment was entered against them. They appealed to the Second Circuit. The key issues decided by the panel were as follows:

Continue reading ‘Second Circuit reverses Judge Weinstein’s order against firearms stores. Concurrence harshly rebukes him.’ »

That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument:

The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. Those clauses followed several possible formulae. The Necessary and Proper Clause is a specimen of the most restrictive of those formulae: It does not actually grant additional authority beyond that conveyed by other enumerated powers. Rather, it is a recital, designed to inform the reader of two legal default rules: 

First, that express grants of enumerated powers, stated elsewhere, carry with them subsidiary incidental powers (“necessary”). 

Second, that congressional enactments must comply with standards of fiduciary obligation and administrative reasonableness (“proper”).

This understanding of the Clause appears in the legal practices and leading cases at the time the Constitution was adopted, and also in the history of the Clause itself—the records of its drafting, in the ratification debates, in the Supreme Court’s great case on the subject, M’Culloch v. Maryland, 17 U.S. 316 (1819), and in Chief Justice John Marshall’s public explanations of M’Culloch.

Once the meaning of the Clause is understood, the implications for the individual mandate are clear:

The mandate is not “necessary” because power to impose it is not a subsidiary “incident” to Congress’s Commerce Power. The power to compel the purchase of a product is as great or greater than the power to regulate voluntary commerce; therefore the mandate cannot be an incidental power regardless of how helpful it might be. For Congress to possess authority of that kind, it would have to be separately enumerated in the Constitution.

The mandate is not “proper” because it violates the fiduciary obligations of impartiality embedded in the word “proper.” During the debates over ratification, participants recognized that a law chartering a commercial monopoly would be “improper.” A fortiori, compelled purchase from favored oligopolists is improper.

Thus, to the extent that the constitutionality of the individual mandate depends upon the Necessary and Proper Clause, the mandate is unconstitutional.

Besides the Independence Institute, the amici on the brief are Prof. Gary Lawson (BU), Prof. Robert G. Natelson (retired from U. Montana Law; currently a Senior Fellow at the Independence Institute); and Prof. Guy I. Seidman (Interdisciplinary Center Herzliya, Israel). The three professors are among the co-authors of The Origins of the Necessary and Proper Clause (Cambridge, 2010).

As an amendment to a broader bill on education. Details here, from the Austin American-Statesman. Campus carry already passed the House as a stand-alone bill, so it seems likely that the House will concur with the Senate amendment. Texas Governor Rick Perry has repeatedly indicated his support for the measure. The floor discussion of the amendment should be available here, in RealPlayer format (although the Senate site warns that the stream has compatability problems with RealPlayer 14).

If enacted, the bill would only authorize carry by persons who have already been licensed by the State of Texas to carry throughout the state. Permit applications require fingerprinting for the background check, and passing a safety training class. Permits are only issued to persons aged 21 or older. Of course a licensee may not carry a firearm while intoxicated. Texas Penal Code 40.035(d). For a guide to the Texas concealed handgun laws, which in many respects are more restrictive than the handgun carry licensing laws of many other states, see this document from the Texas Department of Public Safety. 

For discussion of the policy issues involving campus carry, see my article Pretend ‘Gun-Free’ School Zones: A Deadly Legal Fiction, from the Connecticut Law Review. As the article observes, campus carry has been the rule for years at public colleges and universities in Utah, and at Colorado State University, among others. There have been no reports of problems.

A new app for Google’s Android phone is “Dog Wars.” The player takes the role of a thug who trains a pit bull to fight. In Denver television Channel 7′s coverage of the story, I explained that the First Amendment protects the right of the game producers to make and distribute the game, and also protects the right of people who criticize the game and attempt to convince Google not to distribute it. One part of the interview which didn’t make the final cut was my observation that game promotes prejudice against American Staffordshire Terriers, by reinforcing the myth that so-called “pit bulls” are inherently vicious and dangerous.

So rules a state judge in Bay City, Michigan. According to the ruling, the regulation of stun guns would be constitutional, but not their prohibition. Other than Michigan, the only states that prohibit stun guns are New Jersey and Rhode Island.

Eugene Volokh’s Stanford Law Review article, Nonlethal Self-Defense examines the Second Amendment issues involving stun guns, chemical sprays, and the like, concluding that they are protected by the Second Amendment.

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

…

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625-26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato’s litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in the challenge to that law. The MP3 podcast is available here.