The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Friday, April 12, 2002


PINKOS AND PISTOLS: The article about my gun club has indeed appeared in The Economist. The story mentions the Pink Pistols (a gay pro-gun group -- motto: 'Armed gays don't get bashed'), Jews for the Preservation of Firearms Ownership, the Tenth Cavalry Gun Club (not in the article, but check out Kenneth V.F. Blanchard's main web site,!), the Mt. Holyoke Second Amendment Sisters, the Maryland Institute College of Art Gun Club, the Armed Pagans, and, of course, my own Harvard Law School Target Shooting Club. The piece is 'premium content' on the Economist web site, so you have to pay the big bucks to read it online, so you'd better buy it in print. (It's the best news source there is, so it'll be worth all 450 pennies.) But here's a short (fair-use!) excerpt:

The Harvard Law School is arguably the command centre of American liberalism. But the school's gun club boasts some 120 members, 5% of the student body. Alexander Volokh, who founded the club late last year, takes members shooting on a range in New Hampshire. Guns are banned on the Harvard campus; the New Hampshire range displays a sign saying 'Children under 13 shoot for free.' Mr Volokh plans to hold a wide range of gun-themed events on campus, including screenings of films which feature 'regular people using guns as a force for good.' Another student wrote an article in the Harvard Law Record entitled 'Discovering the Joy of a Semi-Automatic'. . . .
. . . .
. . . Mr Volokh points out that enthusiasm for guns is a form of counter-cultural rebellion, rather like smoking cigars.

A hugely sympathetic article, despite The Economist's pro-gun control editorial position.


Posting this from a "Neptune Network" Internet kiosk at the airport -- off to New York for a conference on "Copyright As Censorship?" My panel will be on copyright and religious freedom -- perhaps a surprising connection, but as they say, "All law is a seamless web." Or sometimes a seamy web, I suppose.

Thursday, April 11, 2002


A VICTORY FOR PROPERTY RIGHTS; OR, WHAT I DID ON MY SUMMER VACATION: Last summer I worked at the Institute for Justice as a summer clerk (photo here). For those of you who aren't familiar with the organization -- IJ is a libertarian public-interest law firm.

  • It defends homeowners in eminent domain cases. (These are the folks who prevented Donald Trump from taking a widow's house near one of his casinos to build a parking structure. The long-run goal -- put some meaning into the requirement that takings of property be for 'public use,' not for resale to private developers.)

  • It defends entrepreneurs in economic regulation cases. (The long-run goal -- put some teeth into the rational basis test, and get the 1873 Slaughterhouse Cases overturned and revive the Privileges and Immunities Clause as a source of constitutional protection for economic liberty.)

  • It defends every school-choice program. (The school-choice case that's up at the Supreme Court now, Zelman v. Simmons-Harris, is one of theirs. The short-run goal -- win.)

  • And it also gets involved in assorted related issues, like campaign finance, commercial speech, associational freedom (filed an amicus brief in Boy Scouts v. Dale on the Boy Scouts' side on behalf of a gay group), and so on.

Gosh, I don't think there's a single thing these folks do that I disagree with.

I got involved in the case of Kelo v. New London, and I even got to go up to New London to help out with the trial, bond with our plaintiffs, and hang out with our incomparable attorneys, Dana Berliner, Scott Bullock, and Clark Neily. This was an eminent domain case where the city of New London, Conn., was trying to raze the nice residential community of Fort Trumbull to build office buildings and high-income housing to go with the Pfizer research and development plant next door. The city had delegated the power of eminent domain to the New London Development Corporation, a private organization. ("Economic property and social justice are two sides of the same coin," says the NLDC.) You can read personal stories about the Fort Trumbull condemnations from the very homeowners who were being kicked out, on the web site of the Castle Coalition, an IJ anti-eminent domain abuse activism project. Months after the trial, I went down to New London from Boston to listen to our closing arguments. It was so beautiful -- I cried. Let me quote a bit, though it's not quite the same on the computer screen:

The defendants want to oust the plaintiffs, destroy their homes and make the only issue left . . . how much money they are going to get for the properties that used to be theirs. What the City and especially the NLDC ignore, and they have done so throughout this battle, is that there are some things that donít have a price; some things that canít be bought and sold; some things that cannot be put up on the auction block. And one of those things to many people is their home. And their land. For someoneís home and land holds their memories and traditions. . . . They are places where . . . Bill Von Winkle and Richard Beyer . . . poured their labor and resources into improving their properties and making them home to people like Fred Weaver and others who love living in a safe, close-knit neighborhood down by the water. For plaintiffs like Matt Dery and [the] Cristofaros, these properties are places where they grew up [and] spent their childhoods . . . . For James and Laura Guretsky, itís the place where they started their family and where they want to raise their children into adulthood. For Wilhelmina Dery, it is the place where she was born, has lived all of her life and now at 83, it is the place where she wants to die.

Their property is really just an extension of themselves and their values. You see, property does not have rights, only people have rights. And the ability to own, use and ultimately control your property is as important as the right to speak, the right to vote, or the right to be afforded a fair trial if brought up on charges. Property has certain intangible qualities that no amount of money can replace. Thatís why this case has never been about the money and itís why people like Susette Kelo and Byron Athenian and the Derys and everyone else fights so hard to hold onto their homes and land. When Matt Dery plants his vegetables in his garden every year, it is the on very spot and on the very earth that his great-grandmother planted hers. These properties are the very expression and extension of their lives and their history and their traditions that is frankly irreplaceable.

Enough with the introduction already. We won! Well, some of our plaintiffs won, and others lost. We didn't win on the broad theories (economic development isn't a public use; the private organization had too much discretion), but we did win on some narrower ones (was there enough assurance that the property on a particular parcel was going to be used for a public use? was the taking necessary?). Judge Corradino (a 1964 Harvard Law School grad) wrote that while normally he would defer 'to the legislature and its selected agencies . . . there is a point beyond which the court cannot go. . . . [There] is [as] yet no development plan for this parcel, no site plans are being prepared, no development agreement is being negotiated, no developer has been designated to work on any plan for this site. . . . [The] hopes [the NLDC has in developing this property] are too speculative to justify these condemnations. . . . Even if the court were prepared to give the legislative agency all the deference in the world under these circumstances, it cannot perform [the] constitutionally mandated function [of determining whether the taking is for a public use].'

Well, our losing plaintiffs are appealing, and the state is appealing as to our winning plaintiffs, so this will drag on for a bit longer. But, at least for the moment, the Derys, Susette Kelo, the Guretskys, and Bill Von Winkle get to keep their homes. I think I spent a productive summer.


SUNDAY IS ALSO TAKE A FRIEND TARGET-SHOOTING DAY: This Sunday, April 14, the Harvard Law School Target Shooting Club is off to Worcester, Mass., to the (inaptly named) Boston Gun Range, where we will spend a lovely morning shooting with the Mt. Holyoke chapter of the Second Amendment Sisters. Also, look for a mention of my club in the current issue of The Economist. (Sadly, you can't read the article online -- it's 'premium content.')


TAKE A FRIEND TARGET-SHOOTING DAY: I took some students to the shooting range Tuesday, and everyone seemed to much enjoy it. (The Public Interest Law Foundation here at UCLA Law puts on an auction each year to raise funds for scholarships; they usually auction off items or events contributed by professors, and each year I contribute pizza, safety training, and target-shooting for four.) The students were one man, who had shot before, and three women, who had virtually no shooting experience. Oddly, the gender balance was exactly the same as in the preceding two or three years that I'd done this.

     I like to do this sort of thing for a variety of reasons (among other things, I have fun and so do most of the people I take), but here are three in particular: First, all people, regardless of their views on gun control, should know how to shoot a gun, and of course how to handle one safely. I hope I'll never have to use a gun outside a shooting range -- but who knows? And it's better to know and not need to use the knowledge, than to need to use the knowledge and not know.

     Second, guns, like other deadly devices (such as cars) arouse both rational concern and irrational concern. I'm generally skeptical about gun control proposals -- "if guns are outlawed, only outlaws will have guns" is an oversimplification, but there's a lot of truth it -- but I've certainly heard lots of thoughtful, sensible arguments against private gun ownership. Unfortunately, I think that at least some anti-gun sentiment comes not from rational analysis, but from visceral hostility, and unfamiliarity is a great source of visceral hostility. Personal experience with a gun -- seeing it as a tool, albeit one that when misused can cause grave harm -- can help focus people on the substance, rather than the fear or the symbolism.

     Third, sometimes (not always, but sometimes) hostility to guns also comes from hostility to gun owners. I remember seeing a photo posted on a colleague's door, showing a fat guy shooting a rifle; the colleague had written over the man's T-shirt, "No gun control or belly control." There was no rational political argument here -- just contempt for "rednecks," "gun freaks," "those people." (The colleague, incidentally, was otherwise a very pleasant, affable, thoughtful fellow.)

     The gay rights movement was, I think, quite right to urge gays to come out of the closet and thus show people that gays aren't just "those weirdos in San Francisco" -- they can be your coworkers, friends, even family members, normal, decent people. It's likewise helpful to communicate, though politely and with a smile, "We're here, we're gun owners, get used to it."

     So a suggestion: If you know something about guns, and live in a non-gun-culture environment (like mine here on the Westside of L.A.), ask some friends to the range. If you're a woman, all the more reason to do that. (On the other hand, if you have a reputation, however unfairly earned, as someone who's, er, a bit odd, maybe you'd better not.) You'll have fun. They'll have fun. And as with all new experiences, people might subtly and indirectly learn something valuable.


THREE-YEAR SANDWICHES. Quare points us to another miracle of modern science. Yum.


IS BUYING A BOOK MORE PROTECTED THAN MAKING A STATEMENT? Early this week, the Colorado Supreme Court held that the government generally may not search a bookseller's customer records. Such a search would still be theoretically possible, but only if the government "demonstrate[s] a compelling governmental need for the specific customer purchase records that they seek" -- a standard borrowed from "strict scrutiny," pretty much the most demanding test in constitutional law.

      The Colorado Supreme Court's justification made a lot of sense, at one level:

When a person buys a book at a bookstore, he engages in activity protected by the First Amendment because he is exercising his right to read and receive ideas and information. Any governmental action that interferes with the willingness of customers to purchase books, or booksellers to sell books, thus implicates First Amendment concerns. Anonymity is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of identity.

Indeed, the risk that the government will find out what you're reading may well deter you from reading controversial things.

      But while this sounds fairly appealing (I'm generally quite a free speech maximalist), I wonder how booksellers' records about who bought which books differs from any witness's testimony about who said certain things to him. Say that the government (or a private plaintiff) is investigating whether a defendant had a certain motive -- for instance, hatred of a defendant, racial animus, loathing of abortion providers, a desire to aid the enemy in time of war, and so on; and say that this investigation leads to a witness being asked, under oath, "Did the defendant ever talked to you about how he thought [the victim / blacks / abortion providers / Allied soldiers] deserved to die?"

      Under the Colorado Supreme Court's reasoning, a defendant could demand that this evidence be excluded -- at least unless strict scrutiny were passed -- using the following argument:

When a person [talks to a friend or acquaintance], he engages in activity protected by the First Amendment because he is exercising his right to [communicate] and receive ideas and information. Any governmental action that interferes with the willingness of [people] to [talk freedly with other people] thus implicates First Amendment concerns. [Confidentiality] is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of [discussions].

This argument, it seems to me, is exactly analogous to what the Colorado Supreme Court said as to bookstores (and surely my right to speakis just as protected as my right to buy books). But I'm quite sure that the Colorado Supreme Court isn't prepared to accept it. And it's easy to anticipate the court's explanation for why people can be required to testify about what a defendant told them: There's no doubt that the risk of one's statements being disclosed does in some situations deter people from speaking -- but for good reason, we take the view that the legal system is entitled to gather evidence, both about what people do and say. Such coercive evidence-gathering is something of an indirect burden on free speech (and on other activity), but one that seems to be justified, though regrettable. Why isn't the same logic equally applicable to bookstore records?

      What's really going on here, I fear, is a replay of the argument that some businesses or professions are entitled to special First Amendment privileges: that reporters are entitled to a special "reporter's privilege" that others don't deserve, that the media is entitled to spend money endorsing candidates while others can be denied this right, and now that bookstores can protect their records but ordinary people must turn over the information that they possess. The U.S. Supreme Court has generally rejected the notion that the First Amendment provides such preferential treatment for some speakers over others -- and I think it has been right to do so.


ETYMOLOGY. Little-known fact: The word "politics" comes from the prefix "poly-," meaning "many," and the root "ticks," meaning "bloodsucking insects."

Wednesday, April 10, 2002



      I just ran across a Conrad editorial cartoon from the L.A. Times: An American Indian is carrying a sign that says "Deport Illegal Immigrants." This, I assume, is meant to suggest that it's hypocritical for white Americans to oppose illegal immigration since America was, well, stolen from the Indians.

      I think, though, that the cartoon illustrates the exact opposite. The whites immigrated to America -- and took over the place. (I'm glad they did, but I can surely understand why the Indians might disagree.) Likewise, Jews immigrated to Palestine -- and eventually there were more Jews in some parts than Arabs, so Jews started running the place. Now Israelis are sensibly objecting to Palestinians' asserted "right of return" to their and their parents' homes, because if enough Palestinians are allowed to immigrate into Israel, they'll start running the place.

      The bottom line is that for all the good that immigration can do (and I'm a first-generation immigration to the U.S., who is very glad that America let me in, and who generally supports immigration), unregulated immigration can dramatically change the nature of the target society. It makes a lot of sense for those who live there to think hard about how those changes can be managed, and in some situations to restrict the flow of immigrants -- who, after all, will soon be entitled to affect their new countrymen's rights and lives, through the vote if not through force.

      I sometimes pose for my liberal friends a stylized thought experiment. Say that they live in a country of 3 million people (the size of New Zealand) where 55% of the citizens are pro-choice and 45% are pro-life (1.65 million vs. 1.35 million). Now the country is facing an influx of 1 million devoutly Catholic immigrants, who are 90% pro-life. If these immigrants are let in and become citizens, the balance will flip to 2.25 million pro-life to 1.75 million pro-choice (56% to 44% pro-choice); and what my friends might see as their fundamental human right to abortion may well vanish, in a perfectly peaceful, democratic way. It's unlikely that any constitutional protection will stand in the way: Even constitutions can be amended, and new judges can be appointed. Nor can one rely on "education" or "assimilation" -- what if the immigrants simply conclude that their views on abortion are just better than the domestic majority's? I think many of the current residents may rightly say "We have nothing against Catholics; but we don't want our rights changed by the arrival of people who have a different perspective on the world than we do."

      Letting in immigrants means letting in your future rulers. It may be selfish to worry about that, but it's foolish not to. For America today, that's actually not that much of a concern, because we're a huge nation whose culture is already so mixed (for which I'm grateful) that even millions of immigrants won't affect it all that greatly, at least for quite a while. But for many smaller and more homogeneous countries, extra immigration means a fundamental change in what the country is all about, and perhaps what the citizens' lives and liberties will be like. It's neither racist nor hypocritical to worry about that.


SONG LYRIC FOR THE DAY. "You told me again you preferred handsome men / But for me you would make an exception." Leonard Cohen, "Chelsea Hotel, No. 2."


WORSE THAN INTERNET ADDICTION. The latest cyber-op-ed from yours truly. Trust me, this thing is very dangerous.


THE USUALLY SPOT-ON INSTAPUNDIT errs, I fear, in praising a recent article:

Someone remarked recently at the astonishing hypocrisy of European diplomats and politicians in supporting the Palestinian "right of return" when so many Europeans are still living in homes stolen from Jews they helped murder.

††††††† First, I suspect that virtually no actual Europeans are literally living in homes stolen from Jews that they themselves helped murder.† This must be an assertion of group guilt, by which today's Europeans are morally responsible from what other Europeans from the same country did 60 years ago.† I'm generally not wild about these sort of group guilt claims, whether made by the right or by the left (and recently it's been almost entirely the left). But if such claims are made, it seems to me that they should made and defended explicitly.

††††††† Second, whatever the voluntary complicity of some Europeans, it seems a vast stretch to ascribe guilt to Europeans generally, either as individuals or as governments.† Most of the continent was under the control of a Nazi tyranny. The governments of those countries -- even to the extent that one can fault today's government for the actions of one that was in place 60 years ago -- were replaced by German puppets. Many people acted for fear of themselves and their families being imprisoned or killed.

††††††† There's a huge difference between voluntary complicity with evil and being forced to act at gunpoint.† Perhaps heroes could have done better; but heroes are always a tiny fraction of any nation.† Perhaps some villains went further than they were forced to go; but those villains are also a small fraction.† The great majority of Europeans were under Nazi control, enforced on pain of death, and it's hard to turn that -- for most people, as opposed to a very few who collaborated more than they had to -- into "deep[] complicit[y]."

††††††† Finally, surely there's a difference between a right to return to a country and a right to return to a particular piece of property that's inhabited by someone (generally by a bona fide purchaser).† I oppose a Palestinian right of return, because I think it would spell the destruction of Israel; but surely the analogy would be if a European country refused to allow Jewish refugees from that country to return to the country -- are particular European countries accused of doing that?

††††††† And if someone were making these arguments to trash "the astonishing hypocrisy" of white Americans who "liv[e] in homes stolen from blacks they helped enslave," would we be agreeing or disagreeing?

This page is powered by Blogger.