Author Archive | Nick Rosenkranz

Does the Plural “Arms” Imply Multiple Guns Per Person?

Eugene Kontorovich has posted (here and here) arguing that it would be unconstitutional to limit each person to carrying only one gun, because the word “Arms” in the Second Amendment is plural. I applaud his attention to text, and I am sympathetic to his bottom line, but I don’t find the textual argument persuasive. The heart of his argument is this:

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Yes, “Arms” is plural, and yes, one can write, for example, “firearm” or “gun” if one wants to clearly convey the singular. But a singular noun would not have worked in this context, because the Second Amendment (like the First and the Fourth; cf. the Ninth) protects a “right of the people” — plural. It would make no sense to say that “the right of the people to keep and bear gun shall not be infringed.” The plural “people” requires the plural “arms” — even if the idea were, in fact, one gun per person.

Again, I am sympathetic to Eugene’s ultimate conclusion. But the fact that “Arms” is plural does not prove the point. [...]

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James Comey Nominated for FBI Director

Yesterday, President Obama nominated Jim Comey to serve as the next FBI Director. One of Comey’s many claims to fame was the dramatic confrontation with White House officials over John Ashcroft’s hospital bed; the New York Times has a compelling account of that episode here. (I was at the Office of Legal Counsel at the time, but the entire incident was, happily, well above my pay grade.) Comey is, by all accounts, an excellent choice for Director of the FBI. [...]

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Cato Brief in Bond Featured in National Law Journal

A while ago I posted about a brief that I filed in Bond v. United States on behalf of the Cato Institute et al., arguing that a treaty cannot increase the legislative power of Congress. Over at Cato, Ilya Shapiro reports that the National Law Journal recently featured our brief as its “brief of the week” and ran a nice story about it, here. [...]

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Profile of Judge Ed Korman

The New York Times has a nice profile of Judge Ed Korman, the judge who faced down HHS in the Plan B case. See Jonathan Adler’s posts, here, here, here, and here. Whatever one thinks of the merits, it takes great fortitude for a district judge to stand up to a recalcitrant administration. As for Judge Korman’s judicial philosophy: “I basically share Bork’s view that the Constitution should be interpreted based on the understanding of the framers of Constitution.” Korman is a first-rate judge. [...]

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The Bourne Implausibility: Movie Inspires Blog Post, Which Inspires Video, Which Inspires Blog Post

Three months ago, under the heading “The Bourne Implausibility,” I offered up the following (wry?) observation:

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

It has recently come to my attention that someone named “Badger Pundit” has posted a YouTube video inspired by this blog post. Since this is, to my knowledge, the first time that a blog post of mine has inspired a video, it seems only fitting to come full circle and link to the video, here. [...]

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Joel Alicea on Intellectual Diversity in the Legal Academy

Last month, I posted about a first-rate conference at Harvard Law School on the topic of intellectual diversity in the legal academy. Joel Alicea, the student who organized the conference, has a nice op-ed in the Washington Times on this topic today. Here is how it begins:

“One cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections,” said Harvard Law School Dean Martha Minow at a recent Federalist Society conference on intellectual diversity in law schools. Unfortunately, this foundational tenet of legal education is not realized in the nation’s leading law schools, including Ms. Minow’s, where students learn a narrowly progressive view of the law from a predominantly leftist faculty. Our nation’s top law schools are failing their students, and in a country whose future will be shaped by those students, it is an urgent problem that we should demand law schools address….

Read the whole thing. [...]

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Bond Amicus Brief for Cato et al.

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “[I]t may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement

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Diversity at Harvard Law School

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument

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Paul Clement’s Brief for Petitioner in Bond v. United States

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. Several of us, including guest blogger Rick Pildes, debated the question at length earlier this year (my final post includes links to all the others). Now, the Court is poised to decide the question.

Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste:

[T]he government is left to argue that, in our constitutional system, a valid non-self-executing treaty grants Congress a plenary power to regulate all conduct that bears a rational relationship to the treaty …. [T]hat contention is fundamentally incompatible with the Constitution and this Court’s precedents. Missouri v. Holland does not establish that proposition, but if it did, it could not be reconciled with more recent decisions that respect our basic constitutional structure. Neither any clause of the Constitution alone nor all of them in combination grants Congress that kind of police power. And the last place such plenary power lies inchoate, waiting to be unleashed by a ratified treaty, is the Necessary and Proper Clause. An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).

I will be posting the other briefs (including mine, for Cato et al.) as they are filed. [...]

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Why Did Law Professors Misunderestimate the Lawsuits against PPACA?

I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. Here is the abstract:

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

Download Hyman’s article here. [...]

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Harvard Federalist Society Conference: Intellectual Diversity and the Legal Academy

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public

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On Liberty

It is always a treat to reread John Stuart Mill’s On Liberty.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

As they say, read the whole thing. [...]

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Harvard Federalist Society: Intellectual Diversity and the Legal Academy

The Harvard Chapter of the Federalist Society is hosting a very important conference tomorrow on intellectual diversity in the legal academy.

Many people realize that legal academia “leans” to the left. But even alumni — indeed, even major donors — are often unaware of the extent of the imbalance. At Georgetown, for example, the ratio of liberals to conservatives/libertarians is roughly 116 to 3. At most top schools, the ratio is similar. One might quibble about definitions, but even on the broadest conception of “conservative” or “libertarian” or, let’s just say, “right of the American center,” most top law schools can count such professors on one hand. In public law, and particularly constitutional law, the disparity is even more extreme.

As a rule, professors don’t like to talk about this. And so it has fallen to the excellent students of the Harvard Federalist Society Chapter to conceive and organize this first-rate conference. Here is the agenda:

Panel I: Problem: is there a lack of intellectual diversity in law school faculties?
12:00-1:00 p.m.

Jack Goldsmith (Harvard Law School)
James Lindgren (Northwestern University Law School)
Mark Tushnet (Harvard Law School)
Moderator: David Barron (Harvard Law School)

Panel II: Effects: should law schools care about intellectual diversity?
1:30-3:00 p.m.

Richard Fallon (Harvard Law School)
Victoria Nourse (Georgetown University Law Center)
Michael Paulsen (University of St. Thomas School of Law)
Nicholas Quinn Rosenkranz (Georgetown University Law Center)
Moderator: Stuart Taylor (National Journal)

Panel III: Solutions: encouraging intellectual diversity
3:30-5:00 p.m.

Paul Campos (University of Colorado Law School)
George Dent (Case Western Reserve University School of Law)
Robert P. George (Harvard Law School)
Jeannie Suk (Harvard Law School)
Moderator: Steven Calabresi (Northwestern University Law School)

Keynote Address
Sherif Girgis (Yale Law School)
5:30-6:00 p.m.

Reception
6:15-7:00 p.m.

This conference is open to the public. More [...]

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