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Harold Koh, "A World Drowning in Guns":

Many people are interested in Harold Koh's nomination to be State Department legal advisor, but not all of those people have access to Lexis, Westlaw, or a good law library. Accordingly, here are links to two important articles by Koh:

On American Exceptionalism, 55 Stanford Law Review 1480 (2003). In this article, Koh examines various definitions of American "exceptionalism", then provides his own, and proposes strategies to eliminate the inappropriate exceptionalism.

A World Drowning in Guns, 71 Fordham Law Review 2333 (2003). In this article, Koh lauds the international gun control effort, and criticizes John Bolton's invocation of the Second Amendment at the 2001 UN small arms conference. VC citation counters will be pleased to see citations to an article by Randy Barnett and one by me.

Arkady:
"A World Drowning in Guns"

Anecdotes, of course, are not data. But here's an anecdote. When my brother retired from the service, he went to work for an international security firm. He was sent to some country in Africa, I forget which one. He spent about a month there, came back, and quit. I asked him why he quit. He told me that in that country, everybody, including children, was carrying an AK.
4.9.2009 7:45pm
Jagermeister:
From "On American Exceptionalism", Koh engages in the intellectually lazy practice of referring to his preferred outcomes as "universal", as in "universal human rights values" (referencing positive rights) or "universally understood concept" (referencing torture), or the ultimate, "universal values".

Koh completely misses the essence of American exceptionalism, which is that American values flow from the cornerstone concept that individual rights are inalienable granted by the Creator, as opposed to granted by the throne or the collective state. (Witness Koh's burying individualism deep within the list of American "commitments to liberty, equality, individualism, populism, and laissez-faire)". I would argue that the commitments to rest result from the primary commitment to respect the rights of the individual.

Having missed that key concept, it is easy to see why Koh should elevate European sensibilities of the ICC and other internationalist claptrap over the protections of the Constitution.

Having read his article, I would expect him to be a poor defender of American sovereignty or American rights.
4.9.2009 8:20pm
Cityduck (mail):
Meanwhile Ted Olson, who actually knows and worked with Koh, says:

“The President and the Secretary of State are entitled to have who they want as their legal adviser,” Olson said.

“He has been in international law his entire professional life,” Olson said. “Of course he’s very involved in the subject.”

“I have the greatest respect for Harold Koh,” Olson said. “He’s a brilliant scholar and a man of great integrity.”
4.9.2009 8:23pm
Jagermeister:
It gets worse: In explaining why the U.S. doesn't/hasn't (lately) committed genocide (for example), Koh says, "By supporting and following the rules of the international realm most of the time, but always out of a sense of political prudence rather than legal obligation, the United States tries to have it both ways." Excuse me? "political prudence"? Only the cynical and deprecatory observer of this country could attribute the U.S record on human rights (with its occasion failure but far more often successes) to "political prudence" rather than the heartfelt belief to do what is morally right.

Mr. Koh obviously has a conception of the United States as an amoral, at best, or immoral, participant. His disdain for American should automatically disqualify him from government service. He should no more be allowed to serve than other America-haters such as Ward Churchill or Noam Chomsky.
4.9.2009 8:30pm
cboldt (mail):
LOL at Ted Olson's "endorsement" of Koh. It's void of content relating to the nature and quality of Koh's substantive work.
4.9.2009 8:31pm
Cityduck (mail):

Koh completely misses the essence of American exceptionalism, which is that American values flow from the cornerstone concept that individual rights are inalienable granted by the Creator, as opposed to granted by the throne or the collective state.


You got this slightly wrong. In the United States we believe that individual rights are possessed by the people, not granted by anyone, and that is why we threw off what was touted as a divinely sanctioned monarchy. Our Constitution invoked the power of "we the people," and spoke only of "the blessings of Liberty," not of any divine sanction or right. And when that document was first Amended in 1791, our Founders saw fit to note, again, that unenumerated rights are "retained by the people," again with no reference to divine sanction.
4.9.2009 8:35pm
Jagermeister:
Andrew McCarthy's Response to Ted Olson's Endorsement of Harold Koh says it better than I can:
we can stipulate that Koh "is a brilliant scholar and a man of great integrity" — we don't have a disagreement about that. This is an argument about policy, not personality, honesty, or qualifications.
There are probably many nice, honest, people who prefer European or transnational legal structures and organizations to American ones. That doesn't make them appropriate to represent American interests in the State Department.
4.9.2009 8:36pm
Cityduck (mail):

LOL at Ted Olson's "endorsement" of Koh. It's void of content relating to the nature and quality of Koh's substantive work.


I'd say calling him a "brilliant scholar" is high praise for the quality of Koh's work.
4.9.2009 8:37pm
johnw:
CityDuck - "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness."

Not that there's any reference to devine santion there.
4.9.2009 8:39pm
johnw:
Of course that would be divine sanction.
4.9.2009 8:41pm
Cityduck (mail):

There are probably many nice, honest, people who prefer European or transnational legal structures and organizations to American ones.


You do realize, don't you, that the United Nations was an American invention? The rise of the U.S. as a force in world affairs corresponds with the rise of transnational legal structures precisely because the U.S. has been the driving force behind the promotion to those structures and the concept underlying them is largely a vision of a world that looks more like the U.S. Indeed, the creation of the European Union is a step by Europe towards emulation of the U.S. model.
4.9.2009 8:41pm
Jagermeister:
The Declaration most explicitly says:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
You can conceive of your creator any way you want, with out without divinity. I invoked the phrase specifically to distinguish it from the European concept of granted rights, and your nitpicking on the issue betrays you to be a ideologue attempting to advance your agenda independent of the facts.

If you want to advance an argument for the diminution of the Constitution and the advancement of transnational supremacy in the United States, then make it. Engaging in non-sequiturs does not make your case.
4.9.2009 8:44pm
Cityduck (mail):

CityDuck - "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness."

Not that there's any reference to devine santion there.


I note your selective quoting of the Declaration of Independence. What you leave out is key:


When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,


The Declaration of Independence was nothing more than a letter to the government of England, and the world, intended to serve as propaganda justifying the colonies rebellion. It is not a document which established any governmental structure for the U.S., and the impassioned rhetoric it contains, while perhaps appropriate for a litany of criticisms directed against a divinely sanctioned Monarch, finds no echo in our Constitution. Simply put, it has no relevance.

Further, the rhetoric of the Declaration does not support your view, it instead evidence the Deist leanings of some of the Founders and their rather lax view of the import of the origins of the rights held by the people. The Declaration invokes first "the Law's of Nature" (not divince sanction) and only subserviently "Nature's God" (a Deist phrase). While it does assert that men are endowed by "their Creator" with the vague rights to life, liberty and the pursuit of happiness (try enforcing those rights!), it also contradictorily states that "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

It is this notion, that rights are inherent to people, and government derives its authority from the people, not God, which is the cornerstone of our Constitution and our Country.
4.9.2009 8:56pm
Jagermeister:
Returning to Mr. Kopel's point of the post (I assume), Koh writes:
This brings me to the fourth and most problematic face of American exceptionalism: when the United States actually uses its exceptional power and wealth to promote a double standard. ... Recent well-known examples include such diverse issues as ... claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons.
That pesky Second Amendment. Mr. Koh's preferred position is that the Constitution should not prove an impediment to the enactment of global treaties. It would seem obvious that the belief that the Constitution should be subordinated to the dictates of a unrepresentative international elite is incompatible with serving in a position which requires the defense of Constitutional principles in the face of international attack. Hiring someone to defend you who has already declared for the other side is madness. Yet that is obviously what Koh has done. I think that Mr. Kopel's choice of citations have adequately proved his contention that Koh is unsuitable for the job. Even more worrisome is what his nomination says about the person who nominated him.
4.9.2009 8:58pm
cboldt (mail):
-- I'd say calling him a "brilliant scholar" is high praise for the quality of Koh's work. --
.
But it doesn't say anything about Olson's agreement with the substance. "Brilliant scholar, without more, is an empty piece of praise. The same could be said of Ken Starr, Yoo, Bybee, etc. just as well as to Koh. IOW, Olson might see Koh as genius in his approach to reaching [what Olson sees as] the wrong conclusion.
4.9.2009 9:00pm
Cityduck (mail):
You misrepresent Koh's position. He states that he does not think that restrictions the sale of weapons across national boundaries would offend the Second Amendment because such restrictions would be deemed "reasonable," assuming that the Second Amendment would be invoked at all.

You'll have to explain to me why the Founders would have thought that the Second Amendment preserves a "right" for an American citizen to sell assault rifles to, for example, Islamic terrorists, Somali warlords, or even your run of the mill 3rd world street thugs.
4.9.2009 9:07pm
gattsuru (mail) (www):
You'll have to explain to me why the Founders would have thought that the Second Amendment preserves a "right" for an American citizen to sell assault rifles to, for example, Islamic terrorists, Somali warlords, or even your run of the mill 3rd world street thugs.


That position would be a lot more relevant -- albeit still far from accurate -- if that were the type of illicit trade in arms these methods are interested in banning. Given that these efforts have included (and in many cases focused on) the centralized registration of all arms and heavy restrictions on the sales of arms inside of a country, up to and including some seizures. I think the Founding Fathers would be rather pissy about the seizure of arms, given that they started a war over the matter.

IANSA is, after all, affiliated with the Brady Campaign and CSGV, and they are not doing so merely to fill out the web page.
4.9.2009 9:28pm
cboldt (mail):
"Because the original [AK-47] design was not patented in Russia, copies are now being manufactured in some nineteen countries ..."
.
Koh has no clue how patent law works. Assuming arguendo that the inventor DID have a patent in Russia. That would not preclude the making buying or selling in any country other than Russia. Those same 19 countries are free to make knock-offs, as long as they don't attempt to get them into Russia.
.
"The task of regulating small arms has been complicated by ... human rights and civil liberties arguments ... in favor of individuals rights to possess [small arms] under domestic law, as for example, under the Second Amendment of our own Constitution"
.
Koh also adopts the [not uncommon] intellectually corrupt reading of the Miller case.
.
Koh is an unapologetic statist.
4.9.2009 9:29pm
a knight (mail) (www):
I found an amusing contradiction in "A World Drowning in Guns".

On pg 2334, Koh, describes a category: "small arms and light weapons". The third characteristc he gives for this category is "they are primarily designed for military use". Then he goes on to assert that even though no complete consensus has been reached as to which specific weapons belong in this category, "at minimum" a shotgun is a member of it.

Then on pp 2348,2349, he cited Senator Feinstein, claiming that US v Miller had decided a sawed-off shotgun is not protected by the second amendment.

Yet by classifying a shotgun as being "primarily designed for military use", Koh has destroyed the primary rationale Justice McReynolds used in his Miller opinion to place sawed-off shotguns without the Second Amendment's guarantee to possess arms:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

United States v. Miller, 307 U.S. 174 (1939)
4.9.2009 9:30pm
byomtov (mail):
Andrew McCarthy's response...

Isn't this the same Andrew McCarthy who was last seen espousing the theory that Obama's autobiography was ghost-written by Bill Ayers?

Why would anyone take such an idiot seriously?
4.9.2009 9:38pm
a knight (mail) (www):
Jagermeister - nice disinformation spin. Bolton's oppositional assertion to the small arms treaty, "That pesky Second Amendment" "exclusion from a proposed global ban on the illicit transfer of small arms and light weapons", was a non sequitur, intended only garner Pavlovian responses from those properly conditioned .

In "World Drowning In Guns", pg 2348, Koh stated:
...the conference proposal had made amply clear that no treaty proposal would affect legal gun ownership nor were they designed to affect any national gun laws.

Next time you feel the chain get yanked, that's welded to the ring in your nose, might be a far better thing to contemplate who is at the end of it, instead of salivating pre-programmatically.
4.9.2009 9:44pm
DangerMouse:
...the conference proposal had made amply clear that no treaty proposal would affect legal gun ownership nor were they designed to affect any national gun laws.

That'd be step 2. Libs work by ratcheting things up over time.
4.9.2009 9:53pm
gattsuru (mail) (www):
...the conference proposal had made amply clear that no treaty proposal would affect legal gun ownership nor were they designed to affect any national gun laws.

Yet the membership proposes laws which affect legal gun ownership and affect nearly all national gun laws.
4.9.2009 9:58pm
cboldt (mail):
-- rationale Justice McReynolds used in his Miller opinion to place sawed-off shotguns without the Second Amendment's guarantee to possess arms --
.
Justice McReynolds did no such categorization. He said the record was void of evidence that would facilitate categorization. "In the absence of evidence ... we cannot say ..."
.
And further, the logic of Justice McReynolds is that if a short barrel shotgun DOES have relationship to the preservation or efficiency of a well regulated militia, then it IS protected by the 2nd amendment. IOW, classifying a shotgun as as being "primarily designed for military use" would cause Justice McReynolds used in his Miller opinion to place sawed-off shotguns within the Second Amendment's guarantee to possess arms.
4.9.2009 9:58pm
Toby:
CityDuck: And his mother, who actualliy lived with him for many years, says he was "a very nnice boy"

Without any characterization of why he is so brilliant, or what makes Koh think so, then it is a statement without any more value than praise at the Ruritan dinner.
4.9.2009 11:18pm
Bob from Ohio (mail):
Olson is a big part of the legal establishment as is Koh.

Guild loyalty trumps all. Koh could be caught molesting goats and the legal establishment would back him.

I do, however, agree with:


The President and the Secretary of State are entitled to have who they want as their legal adviser,” Olson said.


especially since O almost certainly shares Koh's views.

O won so we live with the consequences.

But Olson's other statements are just the usual establishment back scratching.
4.9.2009 11:55pm
Bill from CA (mail):
By the way, according to Koh's article the "World Drowning in Guns" has one gun for every 12 people, which doesn't strike me as an overwhelming number.
4.10.2009 1:11am
Larrya (mail) (www):

The Declaration of Independence was nothing more than a letter to the government of England, and the world, intended to serve as propaganda justifying the colonies rebellion.
Well, not quite. The Declaration is the philosophical document explaining the political philosophy that underlies our Constitution.
It is not a document which established any governmental structure for the U.S., and the impassioned rhetoric it contains, while perhaps appropriate for a litany of criticisms directed against a divinely sanctioned Monarch, finds no echo in our Constitution. Simply put, it has no relevance.
It has tremendous relevance. If you hadn’t stopped a little short you would have included:
"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Of course that option wasn’t included in the Constitution, since a typical dissolution clause, in a corporation or club, appeals for its enforcement to higher authority. The sovereign nation has no such higher authority except for the People. And if the people ever have to act, the Constitution will already be broken.
It is this notion, that rights are inherent to people, and government derives its authority from the people, not God, which is the cornerstone of our Constitution and our Country.
Potato, potahto. The Declaration argues that the rights of the people came from the Creator. If you want to argue that they magically appeared without a creator, it doesn’t change the principle. Under the Constitution the people run the government. Under the competing systems God or political philosophy or whatever sets up the government to rule the people.
The Founding Fathers spelled that out quite clearly in Article VI:
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. "
...the conference proposal had made amply clear that no treaty proposal would affect legal gun ownership nor were they designed to affect any national gun laws.
But if you even glance at the specific restrictions to be implemented it’s clear that IANSA’s intent is to disarm individuals by ending legal gun ownership, and leave governments a monopoly on weapons.
You'll have to explain to me why the Founders would have thought that the Second Amendment preserves a "right" for an American citizen to sell assault rifles to, for example, Islamic terrorists, Somali warlords, or even your run of the mill 3rd world street thugs.
The right to keep and bear arms in self-defense as “preserved” by the Second Amendment, is one of those rights “all men” “are endowed by their Creator with.” Of course, most of us would rather sell or give firearms to the victims of the people you mention, but that’s exactly what IANSA most forcefully opposes.
By the way, according to Koh's article the "World Drowning in Guns" has one gun for every 12 people, which doesn't strike me as an overwhelming number.
It is if you’re from the government, and you’re there to “help.”
4.10.2009 4:57am
Richard Aubrey (mail):
Hey, Oren.
We were talking about sponging up foreign legal doctrine....
4.10.2009 7:10am
PersonFromPorlock:
Cityduck:

Indeed, the creation of the European Union is a step by Europe towards emulation of the U.S. model.

Not really. The European governments' notion is that freedom is nice but order is nicer. The EU intends a sovereign government, not a sovereign people, as witness its refusal to accept the defeat of the EU Constitution by the voters.
4.10.2009 7:28am
http://volokh.com/?exclude=davidb :

If you want to argue that they magically appeared without a creator, it doesn’t change the principle.

You and I have entirely different definitions of the word "magic," apparently.
4.10.2009 8:52am
CDT (mail):
You'll have to explain to me why the Founders would have thought that the Second Amendment preserves a "right" for an American citizen to sell assault rifles to, for example, Islamic terrorists, Somali warlords, or even your run of the mill 3rd world street thugs.


Interesting example. If, however, we change your example to "explain to me why the Founders would have thought the Second Amendment preserves a right of American citizens to buy guns from international makers, or to sell/give guns to desperate peoples fighting tyranny (such as the British fighting the Nazis, the French Resistance, or the Iraqis fighting Al Qa'eda) the reason why the Founders would have thought that such thing was not only a right, but a moral imperative, becomes quite clear... as the French came to our aid against the British.

There are many tyrants on the International stage who would love to make it "war crime" for Americans to send guns to people desperate to overthrow them... which is why Americans would oppose laws that would make arming people a bad thing.

"It is unfortunate that the efforts of mankind to recover the freedom of which they have been so long deprived, will be accompanied with violence, with errors, and even with crimes. But while we weep over the means, we must pray for the end." --Thomas Jefferson to Francois D'Ivernois, 1795

"Our citizens have been always free to make, vend and export arms. It is the constant occupation and livelihood of some of them. To suppress their calling, the only means perhaps of their subsistence, because a war exists in foreign and distant countries in which we have no concern would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty... of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned; and that even private contraventions may work no inequality between the parties at war, the benefits of them will be left equally free and open to all." --Thomas Jefferson to George Hammond, 1793.

And I just can't let the "assault rifle" absurdity stand. All rifles are capable of "assault." They can "assault" game, criminals, and tyrants. That's what they do. The phrase and how it has been used in law (here and elsewhere) basically means "anything that looks scary," because it has no relationship to guns with the EXACT same functionality that aren't so scary looking. If a rifle was incapable of "assault" it would be a toy gun.
4.10.2009 10:20am
Kim du Toit (mail) (www):
None of this matters. The Constitution says what We The People understand it to mean, and the opinions of some people wearing powdered wigs may be interesting, but in the long run, irrelevant.

It's nice that the current SCOTUS agrees (9-0) that the Second Amendment is an individual right to bear arms, but even had it gone the other way, the American people would still go on acquiring guns -- probably, in the latter case, in even greater numbers than before.

Remember that Weimar Germany (legally) caused all Germans to register their guns, whereupon Nazi Germany (also legally) used that register to disarm first Jews, and then all Germans.

Note to the lawyers: we KNOW what the Constitution means, and all the legalistic quibbling and folderol is of interest only to other lawyers.

This should be noted especially by politicians.
4.10.2009 10:21am
Bart (mail):
Koh is an advocate of undermining US law by having legal scholars and government lawyers in the government apply conflicting foreign law in an effort to achieve "norm-internalization" - which in plain English means transforming practice into changes of law.

This alone should disqualify Koh as a government attorney.
4.10.2009 10:29am
DangerMouse:
It's nice that the current SCOTUS agrees (9-0) that the Second Amendment is an individual right to bear arms, but even had it gone the other way, the American people would still go on acquiring guns -- probably, in the latter case, in even greater numbers than before.

Just call it "back-alley gun buying."
4.10.2009 10:30am
Edward Lunny (mail):
I wonder, does Mr. Koh expend as much effort attempting to inject U.S. law and rights into the internation legal morass as he does attempting to pervert U.S. law and rights with internation legal opinion and obfuscation ? From where I stand, the "new" Europe is always reminding us as to just why our forfathers left the "old" Europe. I think that they would not see much different between the two, and no reason to question their decision to leave.
4.10.2009 12:53pm
Richard Aubrey (mail):
Edward.
Good point. Might be interesting if somebody were in a position to ask Koh, or one of his supporters, this.
My guess is they'd have to start in on how other nations' laws are more worthy of emulation than ours. It would be bad for them if they got our stuff, see.
4.10.2009 1:06pm
Andy Freeman (mail):
> Meanwhile Ted Olson, who actually knows and worked with Koh, says

Does CityDuck always agree with Olson, or only when Olson takes a position that CityDuck likes?

If the former, it's unclear why anyone else is obligated to follow Olson.

Note that the former is the only case in which CityDuck's comment is intellectually respectable. Hint: you don't get to tell folks that they must accept someone as an authority unless you also accept said person as an authority.
4.10.2009 1:40pm
PubliusFL:
Cityduck:

Further, the rhetoric of the Declaration does not support your view, it instead evidence the Deist leanings of some of the Founders and their rather lax view of the import of the origins of the rights held by the people. The Declaration invokes first "the Law's of Nature" (not divince sanction) and only subserviently "Nature's God" (a Deist phrase).


"Nature's God" is not inconsistent with a Theist conception of God -- read Job, Ecclesiastes, or hymns like "How Great Thou Art." But one concerned about selective quoting of the Declaration of Independence would surely not want to omit phrases like "appealing to the Supreme Judge of the world for the rectitude of our intentions" and "with a firm reliance on the protection of Divine Providence."

On the whole, these statements cannot be reconciled with a Deist God. The God of Deism is the "Divine Watchmaker," who creates the universe and sets it in motion but is not immanent in his creation. The God referred to in the Declaration of Independence judges the works of men, and not just passively, He intervenes in the affairs of men to defend the righteous ("protection of Divine Providence").
4.10.2009 1:56pm
zippypinhead:
Indeed, the creation of the European Union is a step by Europe towards emulation of the U.S. model.
Huh? The only "U.S. model" that comes to mind might be the Articles of Confederation, onto which is then grafted a perverse version of the Administrative Procedures Act that gives real power to the bureaucracy...

What's most remarkable about Koh's Fordham L.Rev. piece isn't that it comes through loud and clear that he's terrified of firearms, it's that he assumes all other rational humans share his phobia. But on a more practical note, since the State Department Legal Advisor nominee believes the Second Amendment simply does not implicate the validity of treaties that regulate, or even prohibit, international trade in firearms, I guess that means I better get off my tail and order that expensive Italian Benelli M2 shotgun I've been coveting, before I can't, eh? Nuts...
4.10.2009 2:37pm
John Skookum (mail):
@byomtov: "Isn't this the same Andrew McCarthy who was last seen espousing the theory that Obama's autobiography was ghost-written by Bill Ayers? Why would anyone take such an idiot seriously?"

It's at least plausible. Obama never wrote anything before "Dreams of my Father" that even hinted at such literary talent. I've read a few short prose pieces of his that are as wooden and cliché-filled as a high school term paper.

The style of the book is uncannily similar to Ayers' writings. Ayers, as loathsome an insect as he may be, is a talented writer indeed. His work is full of nautical metaphors, as is Obama's book, though Obama is a complete landlubber while Ayers is an experienced seaman.

Obama could easily put this rumor to rest by releasing some of his old college papers, but that information is kept strictly sealed at his express order.
4.11.2009 4:13pm
einhverfr (mail) (www):
Interesting papers. It seems that some of Koh's proposals are sensible, while others are not. It also seem to me that he fundamentally misunderstands the nature of the problem.

ISTM, some sorts of weapons should be subject of stricter controls. For example, I don't think that shoulder-launched surface-to-air missiles would be ruled to be protected under the 2nd Amendment, and certainly if you had them in the vacinity of a civil airport, that would be not be difficult to argue that the utility in a militia would be sufficiently less than the terrorist capability that they are outside that protection.

I also think a treaty reporting stricter import/export controls for weapons would be a very good thing. Under such a treaty, countries might agree to criminalize export certain classes of weapons to countries where they are illegal.

However, let me get on to where Koh is fundamentally wrong in some of his points.....

I am in the early process of investing in a business in a South American country. I expect to be investing a fair bit of money and time in this process, and will probably live there for a while and help run it on site. Why do you think both Colombia and Venezuela are not on my list of possible countries? It has to do with the role of law in the society and the weak rule of law. Guns may choke civil society, but a tremendous number of AK-47's in the hands of the Black Eagles and the FARC is not the only thing to blame. While few if any of the countries in South America have the strong rule of law we are used to in this country, places like Venezuela and Colombia show the hazards that occur when deep political divisions in the country are unmet for a while. Inevitably mob rule and/or civil war results. These are not good for foreign investment.

Koh's then point of guns choking civil society can actually be reduced to "civil war disrupts civil society." This is an entirely useless statement from a perspective of what we need to be looking at regarding the international arms trade. Yes, we all know that civil society does not really exist in a country where civil war is ongoing. And of course, nobody in his right mind wants to invest in starting a business serving civil society in a country where civil war is ongoing!

The next problem is actually quite a bit more difficult to show. He alleges that guns fuel civil wars in many of these countries. In reality though the civil wars exist for other reasons and, in most cases (Iraq being a partial exception), is the reason why guns are imported. You are at war, you import guns.

Also, some of us find historical weapons quite fascinating. The durability of weapons is an important element to collectors (my fascination doesn't involve firearms but that is just because of personal preferences I guess---However I have seen absolutely beautiful WWII-era carbines).

I didn't find Koh's case terribly compelling. Everyone wants their opponents disarmed and their friends armed. This is what fueled a lot of the international gun trade during the cold war, and such patterns are still with us today. Treaties on exporting light weapons would be a good first start. I don't want to go much beyond that.
4.11.2009 9:02pm