[Eugene Volokh, 11:35 AM]
INTERESTING CRITICISM OF ROBERT FISK'S MOST RECENT ARTICLE: CalPundit points to a recent Robert Fisk article in which Fisk purports to quote an unnamed "American intelligence officer":

"We didn't catch whom we were supposed to catch," the officer told me. "There was an over-expectation by us that technology could do more than it did. Al-Qa'ida are very smart. They basically found out how we track them. They realised that if they communicated electronically, our Rangers would swoop on them. So they started using couriers to hand-carry notes on paper or to repeat messages from their memory and this confused our system. Our intelligence is hi-tech – they went back to primitive methods that the Americans cannot adapt to."

Do Americans actually talk this way, CalPundit asks? "We didn't catch whom we were supposed to catch"; "Al-Qa'ida are very smart"; "that the Americans [as opposed to 'that we'] cannot adapt to" -- sounds pretty odd when coming from an American. Click here for more. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 4:09 PM]
MORE ON A SAN FRANCISCO COOP'S MOVE TO BOYCOTT ISRAELI PRODUCTS: From InstaPundit.

 
[Eugene Volokh, 4:03 PM]
FEDERALISTS THEN AND FEDERALISTS NOW: Clayton Cramer has some quite apt remarks on this subject, and on Judge Reinhardt's apparent swipe at the Federalist Society.

 
[Eugene Volokh, 3:11 PM]
THE EVOLVING SECOND AMENDMENT: I have an op-ed in National Review Online today discussing the "evolving Constitution" approach to the Second Amendment. It discuss these questions:

. . . Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality? . . .

Go to the article and see my answers.

 
[Eugene Volokh, 10:03 AM]
BELLESILES CLAIMS NEW VICTIM? Clayton Cramer persuasively argues that the Ninth Circuit opinion erred because of its reliance on an article by Michael Bellesiles. The panel opinion says:

Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).

The Bellesiles article in fact does say that:

Though the rebels had not exactly distinguished themselves in the martial arts, their uprising had far-reaching consequences. George Washington wrote to James Madison that "we are fast verging to anarchy and confusion!"

But, as Cramer points out -- quoting Washington's letter more fully -- this is at the very least a highly contestable interpretation of what Washington was saying; it's not at all clear that the "anarchy and confusion" point relates to the "lack of a unified national military force," or even that it refers specifically to Shays' Rebellion. This isn't as clear an error as some of the errors in Bellesiles' work (and therefore in the work of those who relied on Bellesiles), but it still seems likely erroneous, at least in its absence of any necessary qualifiers.

 
[Eugene Volokh, 9:43 AM]
MONOPOLIES: The casket case that Sasha mentioned has lots of interesting arguments in it, but the heart of the opinion, I think, comes in this paragraph:

Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose. See City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978) ("Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."). See also H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38 (1949); Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411 (1983) (distinguishing between legitimate state purposes and "providing a benefit to special interests").

Giving licensed funeral directors exclusive rights to sell caskets is, after all, a perfectly rational way of achieving the goal of subsidizing these people, at the expense of the consumers (and of the economic liberty of would-be competitors). The same goal is served by laws limiting the number of licensed cab drivers, and a variety of other barriers to entry into various professions. Likewise, minimum wage laws are means of subsidizing some employees at the expense of employers, consumers, and other employees. Some of these laws may also potentially serve other goals, such as health or safety, but the most straightforward justification for most of them is the desire to enrich one group, even if it means burdening the pocketbooks and liberties of another.

     The question is whether this goal is constitutionally permissible under the Due Process Clause; and the conventional answer is yes, at least ever since the late 1930s. It may be impermissible under other provisions, such as the Commerce Clause (which was involved in the first two cases that the Sixth Circuit cites) and the Contracts Clause (which was involved in the third case). When a state's action burdens interstate commerce, the government must show some more powerful justification that just the desire to benefit local businesses over other businesses. When a state's action abrogates existing contracts, the government must show some more powerful justification than just the desire to benefit those who are obligated by the contracts at the expense of those to whom the obligation is owed. But under the highly deferential "rational basis" standard generally applicable to Due Process Clause and Equal Protection Clause cases involving economic matters, the desire to benefit group A at the expense of group B is considered quite proper. (It surely is the foundation of many tax classifications, for instance, that have routinely been upheld.)

     Now perhaps the Sixth Circuit position reflects the law as it should be, and is a step towards changing the law in that direction. In that respect, it really would be a very important case. My tentative sense is to say no: Many constitutional provisions, such as the Contracts Clause and possibly the Privileges and Immunities Clause (which the court declined to consider here), may impose various constraints on government power -- but if they don't apply, I don't think the Due Process Clause prohibits redistributionist legislation, even if I think the legislation is unwise or immoral. But in any event, the paragraph I quote above is, I think, the most striking part (for better or worse) of the court's decision.

 
[Eugene Volokh, 6:47 PM]
THINGS THE NINTH CIRCUIT'S SECOND AMENDMENT OPINION DOESN'T DISCUSS:

1. The Ninth Circuit repeatedly stresses that the right relates to "a military force established and controlled by a government entity," "not some amorphous body of the people as a whole" (p. 32). But nowhere does the Ninth Circuit acknowledge that this militia was essentially the adult white male able-bodied citizenry. Not a National Guard, not a small group of people chosen by the state, but pretty much everyone who mattered at the time (yes, I know it was limited to white males, but that was the 1790s for you), subject only to an 18-to-45 age restriction (which I suspect covered the great majority of people). Much more consistent with a right of the people -- you and me -- than if "militia" simply meant a National Guard.
   
        You'd think that in a discussion of what "militia" means in the Second Amendment, the Ninth Circuit would quote the Supreme Court's statement as to what this means: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." United States v. Miller (1939).
   
        You'd think that the Ninth Circuit would quote the Militia Act of 1792 (enacted by Congress three years after Congress proposed the Second Amendment), which defined "militia" to include "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years [subject to some narrow exceptions]" -- and curiously the definition remains pretty much the same today.
   
        You'd think that it would quote the four state ratifying conventions' calls for a right to bear arms, which all speak of a "well regulated Militia composed of the body of the people trained to arms" or "capable of bearing arms."
   
        But you'd be mistaken in so thinking, because the Ninth Court never quotes these sources.



2. What about leading constitutional commentators of the era? The Second Amendment was clearly a broader version of the right to have arms in the English Bill of Rights of 1689, and fortunately Sir William Blackstone -- the leading English legal commentator of the late 1700s, and apparently a profound influence on the Framers -- discussed the right at length. The right clearly wasn't a right of states; there were no states or other quasi-sovereign political subdivisions in England; Blackstone called it a "right of the subject", clearly an individual right. The name Blackstone does not appear once in the Ninth Circuit opinion.
   
        What about Justice Story, the leading U.S. constitutional commentator of the early 1800s, who got his legal education in the decade following the enactment of the Second Amendment? He referred to the right not as a right of states, or of the militia, but as a "right of the citizens". This item is nowhere quoted in the Ninth Circuit opinion (the only reference to Story is in a quote from Justice Thomas's opinion in Printz v. United States, a quote that does not include the assertion that the right to bear arms is a right of the citizens.) Other leading commentators of the 19th century, such as St. George Tucker (1803) or Thomas Cooley (1880) are likewise never mentioned.



3. What about the rights to bear arms in state Bills of Rights of the era:
   • "Every citizen has a right to bear arms in defense of himself and the state" (Connecticut, 1818, the first Connecticut bill of rights).
   • "[T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned" (Kentucky, 1792).
   • "The people have a right to keep and to bear arms for the common defence" (Massachusetts, 1780).
   • "[T]he people have a right to bear arms, for the defence of the State" (North Carolina, 1776).
   • "[T]he people have a right to bear arms for the defence of themselves and the state" (Pennsylvania, 1776).
   • "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (Pennsylvania, 1790).
   • "[T]he freemen of this State have a right to keep and bear arms for their common defence" (Tennessee, 1796).
   • "[T]he people have a right to bear arms for the defence of themselves and the State" (Vermont, 1777).
   Some of these speak in terms of the common defense, and some also in terms of self-defense, and they do show, I think, that the purpose of the right was in large part related to societal defense (including defense against domestic tyrants). But it seems to me clear that, whatever its purpose, the right can't have belonged to the state, or to a force whose membership is selected and controlled by the state. The rights must be rights of individuals against the state, since that's the function of state Bills of Rights. (The Bill of Rights in the federal constitution can at least theoretically secure the rights of states, but not the Bill of Rights in a state constitution.)
   
        I suppose it's possible for the "right of the people to bear arms" in state constitutions to mean a right of individuals against the government, and for the same phrase in the contemporaneously enacted federal constitution to mean a right of states against the federal government. But it should be worth discussing, no, especially given the Court's view that contemporaneous state constitutional provisions are quite relevant when trying to interpret the federal provision. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (examining Eighth Amendment in light of contemporaneous state constitutional provisions on punishment); Taylor v. Illinois, 484 U.S. 400, 407 & n.13 (1988) (interpreting Sixth Amendment's Compulsory Process Clause in light of contemporaneous state constitutional provisions on criminal defendant's right to establish elements of his case); Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978) (using Virginia Bill of Rights as aid in interpreting Fourth Amendment's Warrant Clause). And yet the Ninth Circuit opinion nowhere mentions them.

Disappointing.

 
[Eugene Volokh, 9:45 AM]
ELECTED PUBLIC DEFENDERS: In many places, chief prosecutors -- both local district attorneys and state attorneys general -- are elected; that's a pretty familiar fixture of American life. But in a few places, public defenders are elected, too; to my knowledge, this is done in notoriously liberal San Francisco, but also not-so-notoriously liberal Florida, much of Nebraska, and most of Tennessee.

     What are those elections like? Do public defenders run on a "soft on crime" platform? Do they instead pledge "I will provide criminal defendants the minimum constitutionally adequate defense" (surely not, I hope)? Do they just focus on professional reputation and managerial competence, as measured by endorsements? Are there implicit political pressures on elected public defenders not to be too assiduous in getting criminals off the hook, or are professional norms sufficient to overcome any such subtle pressure?

     Now I have no specific reason to think that these elected public defenders are any worse (or any better) than appointed ones; it's quite likely that they do as good a job as other public defenders. And perhaps this is evidence against the often-heard assumption that the political process will somehow always shortchange the interests of the accused -- perhaps the public in these jurisdictions realizes the need to have an effective adversarial system.

     But it would be interesting for someone to actually take a close look at how these elections are conducted -- I'm genuinely curious about what people might find.

 
[Eugene Volokh, 9:36 AM]
WEB SPEECH GETS SAME PRIVILEGES AS PRINT SPEECH: The Georgia Supreme Court has just held that a Georgia libel retraction statute applies to Internet speech (specifically, to posts on a Web-based discussion group). (Mathis v. Cannon, No. S02G0361, Nov. 25.) The statute, Ga. Stat. Ann. § 51-5-11, protects defendants from punitive damages in libel cases if they promptly and prominently publish a retraction "in a regular issue of the newspaper or other publication in question." (They may still be liable for compensatory damages.) The court held that "other publication" includes Internet publications.

     Courts have made it quite clear that online speech generally gets the same constitutional protection as speech in newspapers and magazines -- but what about statutory protections, such as retraction statutes, that aren't constitutionally mandated but are provided by state legislatures? The Georgia Supreme Court decision may be a quite helpful precedent in favor of reading such statutes (when possible) to cover Internet speech; note, though, that there's also a contrary decision from a Wisconsin appellate court (interpreting the Wisconsin statute, which is written differently).

     I discuss this question, and related ones, in more detail in my TechCentralStation.com "Cyberlaw Maven" piece (just posted this morning).

 
[Eugene Volokh, 9:30 AM]
UNIVERSITIES, GAYS, AND MILITARY RECRUITMENT: I've got a National Review Online article on this subject this morning. Here's the introductory paragraph:

"Perspective," my New Shorter Oxford Dictionary says, is "a mental view of the relative importance" of things. The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective.

 
[Eugene Volokh, 9:22 AM]
THE ENGLISH LANGUAGE: Clayton Cramer quotes the following (a bit overstated but amusing):

"The problem with defending the purity of the English language is that English is about as pure as a cribhouse whore. We don't just borrow words; on occasion, English has pursued other languages down alleyways to beat them unconscious and rifle their pockets for new vocabulary." [James D. Nicoll]

 
[Eugene Volokh, 7:41 AM]
DANGEROUS MOVE: The Administration is apparently developing a parallel law enforcement system in which alleged murderers and their associates, instead of being arrested by the police and tried by civilian courts, are simply killed by the military. What's more, even if they're arrested rather than just killed, they're kept locked up, rather than being tried in accordance to the Constitution. In order to better implement this strategy, the Administration claims a right to engage in nearly unlimited eavesdropping of the accused, with no regard for the strictures of the Fourth Amendment. And the Administration roundly rejects any demands that decisions about whom to kill, and when and where to do it, should be subject to judicial oversight.

     This system -- which incidentally was the policy of many Administrations and not just Bush's -- is technically known by the name of "war." Rather than trying to use civilian law enforcement to arrest the people who bombed Pearl Harbor, the Roosevelt Administration tried to kill them, and also tried to kill those who were aiding them (even quite indirectly). Once they were "arrested" (captured), they were detained as enemy combatants (referred to as prisoners of war if they engaged in lawful combat, and as unlawful combatants if they were engaged in unlawful combat, such as espionage and sabotage). The government naturally tries to eavesdrop on the enemy any way they can, with virtually no legal constraints (at least outside the U.S.). And naturally one doesn't go to court for a trial on whether one should bomb this or that enemy location, or for a warrant to do so.

     Now this is not meant as a parody of concerns that

The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

These are serious concerns, and the war analogy does not dispose of them. But the war analogy does, I think, put the concerns into perspective, and illustrate that not all departures from civilian law enforcement norms are necessarily wrong. When the nation is not in a war, there is only one "ordinary system," the civilian one. But when the nation has been attacked by an enemy military force that aims to change American policy by killing Americans in America, there are two systems that are "ordinary" for these uncommon but not unprecedented times: The civilian law enforcement system and the military warmaking system.

     We definitely need to have a debate about how the government should fight terrorism without unduly threatening American liberty. But we have to recognize that the issue isn't whether we should create a parallel system for dealing with enemy combatants -- we've long had such a system, and I think we must. The question is who qualifies for the military system and who goes through the civilian system, and who decides the answer to this question (which of course is what Padilla v. Bush is about).

 
[Eugene Volokh, 5:50 PM]
"TOO MUCH VOLOKH"?!? How can there be such a thing as "Too Much Volokh"? Impossible.

 
[Eugene Volokh, 4:26 PM]
RACE PREFERENCES, AND CALLS FOR THE SUPREME COURT TO AVOID IMPOSING ITS VIEWS ON STATE-RUN SCHOOLS: John Rosenberg has a very interesting perspective.

 
[Eugene Volokh, 4:10 PM]
UNSCIENTIFIC POLL: My friend Jack Schaedel passes along this article, which uncritically reports the result of an unscientific poll:

Ronald Reagan topped the "greatest living American" list in a new Esquire magazine survey released this week.

The eclectic "Survey of the American Male," featured in the January 2003 issue, plumbed the depths of about 1,900 men to reveal traditional underpinnings and political paradoxes, among other things.

Indeed, former President Reagan was voted top dog, followed by former President Jimmy Carter, Secretary of State Colin L. Powell, "my dad" and finally former President Bill Clinton, respectively.

Mr. Clinton headed the list of "most loathsome living American" as well. . . .

Esquire magazine, which has a 700,000 circulation, does not claim its survey to be "a scientifically random sample of the population," according to Scott Quill, who compiled the list.
It is "a snapshot of the American male, circa 2002," he said. . . .

No, it's not "a snapshot of the American male" -- it's a snapshot of the particular 1900 subscribers who chose to respond to the survey (if I understand the survey design correctly). And if it's not a scientific sample, what makes it newsworthy?

 
[Eugene Volokh, 2:20 PM]
ANOTHER ELECTION FIGHT, this time over a close Maine Senate election. Control of the state senate turns on the outcome.

 
[Eugene Volokh, 2:18 PM]
"WE ARE VERY CLOSE TO GETTING THE WHOLE STORE TO DESHELVE ISRAELI PRODUCTS" -- in San Francisco:

[C]ertain departments of the co-op Rainbow Grocery have removed Israeli-made products from their shelves.

Although Israeli products remain on the shelves of other Rainbow departments, which are run independently, some workers are pushing for a storewide boycott, an employee of the Mission District store said Tuesday. . . .

I think every business should have the right to decide not to stock products that come from some country; I understand there are some statutory constraints on certain kinds of anti-Israel boycotts, but I'm not sure they apply here, and I wouldn't support their applicability here. But I also think that San Franciscans who oppose this sort of double standard imposed on Israel -- which, despite its flaws, one of the least repressive countries in the Middle East -- should decide not to patronize this business.

     (Thanks to reader Jim Herd for pointing me to this story.)

 
[Eugene Volokh, 11:15 AM]
TWO PROCEDURAL OPINIONS IN THE PLEDGE OF ALLEGIANCE CASE, one reaffirming that Michael Newdow has standing to challenge the pledge, even though the mother of his daughter now has sole custody of her, and another denying the U.S. Senate the right to intervene.

     In addition to dealing with the standing question, the first opinion shows that the panel majority is unrepentant in its condemnation of the use of "under God" in the Pledge:

When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized "under God." While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view. The pledge to a nation “under God,” with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.

When Judge Goodwin quickly stayed the decision shortly after it was handed down, some speculated that even he and Judge Reinhardt were a bit chastened by the opposition that the decision aroused -- apparently they haven't been (not that they, as judges, should be). We'll see what the rest of the Ninth Circuit judges might do.

 
[Eugene Volokh, 11:13 AM]
PROCEDURAL ISSUES IN PADILLA V. BUSH: The district court also held that Donna Newman, the lawyer who had been appointed to represent Padilla when he was a material witness, had standing as "next friend" to sue on Padilla's behalf; that Padilla could name Donald Rumsfeld as a defendant, and not just the commander of the brig in which he's being held (in South Carolina); that the Southern District of New York had jurisdiction over Rumsfeld; and that the case didn't have to be transferred to South Carolina. These may well be controversial issues, but I'm not expert enough to comment on them.

 
[Eugene Volokh, 11:04 AM]
PADILLA ENTITLED TO CONSULT WITH HIS LAWYER: The Padilla v. Bush held that Padilla could meet with his court-appointed lawyer to give the lawyer the facts needed to present Padilla's habeas case. The court found statutory for this in the broadly-named and broadly-worded All Writs Act, and rejected the government's arguments that this would interfere with national security:

1. "[A]ccess to counsel need be granted only for purposes of presenting facts to the court in connection with his petition . . .; no general right to counsel in connection with questioning has been hypothesized here, and thus the interference with interrogation would be minimal or non-existent." (p. 85).



2. Accepting the argument that contact with the lawyer can't be allowed because "Padilla might use his lawyers to pass messages to others" (whether with or without the lawyer's knowledge) "proves far too much: by the government's logic, no indicted member of al Qaeda facing trial in an Article III court should be allowed to consult with counsel -- a result barred by the Sixth Amendment" (p. 86).



3. Given the facts of this case, the conjecture that Padilla might use lawyers to pass messages to others is "gossamer speculation" (p. 86).



4. "Padilla has already had meetings with counsel in New York, and thus whatever speculative damage the government seeks to prevent may already have been done" (p. 86).



5. Military personnel could "monitor Padilla's contacts with counsel, so long as those who participate in the monitoring are insulated from any activity in connection with this petition, or in connection with a future criminal prosecution of Padilla, if there should ever be one" (p. 86). The judge gives as an analogy the controversial Bureau of Prisons regulation which allows similar monitoring of conversations between civilian prisoners and their lawyers, if there's reason to believe that the civilian prisoners may be using the lawyers to communicate to their confederates in the outside world.



6. "Padilla's lawyers themselves are members of this court's Criminal Justice Act panel who have appeared before this court in numerous cases. . . . There is nothing in their past conduct to suggest that they would be inclined to act as conduits for their client, even if he wanted them to do so" (p. 87).

 
[Eugene Volokh, 10:49 AM]
WHEN MAY A COURT ORDER THAT THE GOVERNMENT RELEASE AN ALLEGED ENEMY COMBATANT (at least if the combatant is a U.S. citizen)? The district judge (Michael Mukasey) in Padilla v. Bush sets forth the standard that he endorses (emphasis added):

The commission of a judge [in such a case] . . . runs only to deciding two things: (i) whether the controlling political authority -- in this case, the President -- was in fact exercising a power vouchsafed to him by the Constitution and the laws; that determination in turn, is to be made only by examining whether there is some evidence to support his conclusion that Padilla was, like the German saboteurs in Quirin, engaged in a mission against the United States on behalf of an enemy with whom the United States is at war, and (ii) whether that evidence has not been entirely mooted by subsequent events.

This is a standard under which judges defer substantially, but not completely, to the President's judgment.

 
[Eugene Volokh, 10:28 AM]
U.S. CITIZENS MAY CONSTITUTIONALLY BE DETAINED AS UNLAWFUL COMBATANTS, if they're indeed enemy soldiers. Padilla v. Bush, pp. 61-66, citing Ex parte Quirin, 317 U.S. 1 (1942).

 
[Eugene Volokh, 10:21 AM]
CONGRESSIONAL AUTHORIZATION OF THE USE OF FORCE QUALIFIES TO ALLOW MILITARY DETENTION: "Further, even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, authorizes the President to use necessary and appropriate force . . . and thereby engages the President's full powers as commander in chief." Padilla v. Bush, p. 53. And while 18 U.S.C. sec. 4001(a), which bars the imprisonment of U.S. citizens without Congressional authorization, does apply to alleged enemy combatants (p. 71, rejecting the government's arguments the contrary), the Military Force Authorization implicitly authorizes the detention of enemy combatants under the rubric of "us[ing] all necessary and appropriate force" against al-Qaeda members (pp. 73-74).

     See here for my earlier discussion of the 4001 issue, which I'm glad to see is consistent with the district court's position.

 
[Eugene Volokh, 10:12 AM]
FORMAL DECLARATION OF WAR UNNECESSARY FOR MILITARY DETENTIONS OF ENEMY COMBATANTS: "[A] formal declaration of war is not necessary in order for the executive to exercise its constittuional authority to prosecute an armed conflict [including using military detentions of enemy combatants, where appropriate] -- particualrly when, as on September 11, the United States is attacked." Padilla v. Bush, p. 50 (district court opinion). Quoting The Prize Cases, 67 U.S. 635 (1862), the district court points out that "war may exist without a declaration on either side."

     I've made this point on several occasions on this blog, for instance here, and I'm glad to see some further support for this.

 
[Eugene Volokh, 10:08 AM]
PADILLA V. BUSH: Here's the district court decision; I'm reading it right now, and will blog some key points as I see them. Remember, though, that this will doubtless be quickly appealed to the U.S. Court of Appeals for the Second Circuit, and that decision will ultimately be much more important than this one.

 
[Eugene Volokh, 9:25 AM]
A BIT MORE ON GAYS IN THE MILITARY: A reader writes:

While I'm unable to identify and articulate all the values involved, I've always thought that the reasons we don't allow gays in the military are the same as those underlying the policy not to house men and women in the same barracks. I think it has to do with discomfort over dressing, showering, sleeping, etc., with those who presumptively are sexually attracted.

I've never quite bought this argument. We rightly demand and expect remarkable courage from our soldiers, and remarkable ability to deal with adversity. They have to be willing to be shot at, to lie for days in trenches, to endure grave privation. Is it really so much to ask them to shower with people knowing that maybe someone is sexually checking them out? Sure, there's some discomfort there, but being in the military means having to endure far greater discomfort. In fact, the military often intentionally inflicts discomfort on trainees to steel them for the future. I'm sure that soldiers who are brave and resourceful enough to do what we ask them to do, in battle and out, are also brave and resourceful enough to deal with the problem.

     The problems that are potentially raised by intra-unit sex and romance are a considerably more serious question. The difficulty of this empirical question is what makes my views on the subject so tentative. But the point the reader raised strikes me as not terribly relevant.

 
[Eugene Volokh, 8:37 AM]
"HARRY POTTER" COMMUNIST PHILOSOPHY MALFOY, some people ask their search engines -- and the answer is Mark Kleiman.

 
[Eugene Volokh, 7:15 AM]
GAYS IN THE MILITARY: I'm very tentatively skeptical about the ban on open gays in the military. The skepticism comes from my general presumption that the government ought not discriminate based on people's sexual preference. The tentativeness comes from my view that the military should be as efficient as possible, and many of the normal constraints on government action should thus be relaxed when it comes to the control and makeup of the armed services. I think there's a difficult and important empirical question here -- would allowing openly gay soldiers in fact materially interfere with the morale, cohesion, and thus effectiveness of the armed forces? I know that I know very little about the answer to this question, and thus can't have anything remotely approaching a truly informed opinion.

     But yesterday's op-ed in the Washington Post doesn't enlighten me much. The op-ed argues that "[t]oday we have numerous real-world instances of known gays serving in [foreign armed forces], providing clear evidence that open homosexuality does not impair military effectiveness." "Rather than relying on anecdotes or conjecture, our researchers asked experts to assess the effect on military performance of lifting the ban on gays. While isolated social disruptions required a few service members to be transferred, not a single informant observed any impairment of military effectiveness after the bans were lifted." Also, in the U.S. itself, "dozens of reports by service members indicate either that they know of gay peers in their ranks or that they themselves are gay and have served in units where their sexuality was widely known. No evidence has tied these units to decreased performance."

     On the other hand, the author argues, "When asked to provide evidence to support the need for 'don't ask, don't tell,' champions of the ban can point only to opinions [such as surveys of military members and testimony from Norman Schwarzkopf and Colin Powell]. . . . Opinions certainly have a role to play in public debate, but they do not constitute empirical evidence, and it's unwise to assess exclusionary policies by polling the excluders."

     Well, I'm a big fan of empirical evidence, but unfortunately the op-ed doesn't explain exactly what empirical evidence the "expert[] assess[ments]" of "the effect on military performance of lifting the ban on gays" in foreign militaries were. Might they have been based on . . . opinions? "[N]ot a single informant observed any impairment of military effectiveness after the bans were lifted." It's hard to observe impairment of military effectiveness the same way that one can observe, say, objects falling or radioactive material decaying; presumably, deciding whether military effectiveness is impaired is a matter of judgment -- either the researcher's judgment, or the judgment of people the researcher asks. Sounds like opinion to me, and my quick skim of the two most recent reports on the Center for the Study of Sexual Minorities in the Military (I assume these are among the reports that the op-ed was referring to when it spoke of "studies" that the Center had published) reinforces my assumption.

     Now of course sometimes opinion is evidence, especially if it's opinion of objective experts. But when I looked closely at the Center's mission statement, it struck me as a group that's fundamentally devoted to the project of ending military discrimination against gays; check it out and see for yourself, but here are the first few paragraphs:

This statement describes the mission of an academic research center named the "Center for the Study of Sexual Minorities in the Military." The Center promotes the interdisciplinary analysis of lesbian, gay, bisexual, transgendered and other marginalized sexual identities in the armed forces.

What role do state institutions play in shaping identities and constructing beliefs about deviance that privilege some groups and pathologize others? In Nazi Germany, nationality laws specified the precise ratio of Jewish blood that differentiated German citizens from aliens. Siobhan Somerville shows that the Supreme Court's characterization of race as an immutable difference between "black" and "white" carried enormous definitional power in late-19th century America. Liisa Malkki argues that Belgian occupiers transformed a complex status hierarchy into simplified categories of "Hutu" and "Tutsi" in colonial Rwanda-Urundi. These instances suggest that understanding the state's role in constructing and demonizing identities can be an important part of studying subsequent regulation and elimination of persons.

There's nothing inherently wrong with that as a political position -- as I mentioned, I sympathize with it. Still, having read the mission statement, it doesn't make me feel that the group is particularly likely to produce a fully objective, balanced evaluation of the issue; among other things, I couldn't see a single paragraph that also discussed the need to consider the military's operational needs -- it's as if the only issue worth discussing is the effect of military policies on gays and society (surely an important question), and the effect of including gays on the military isn't even on the radar screen. And the way the statement is written also doesn't give me much confidence: Imagine a Center for the Study of Abortion in America whose mission statement was written in jargon drawn heavily from the rhetoric of pro-life activists, and you'll get a sense for where my skepticism is coming from.

     In any event, I started read the op-ed with a very tentative view of the question, and I come away from it with exactly the same view. Perhaps some other op-ed based on some other report, richer in concrete facts or at least based on research by seemingly a more politically balanced group, will either change or strengthen my views. But this op-ed, I think, adds nothing to the debate.

 
[Eugene Volokh, 5:26 PM]
ANTI-MASK LAWS AND LAWS BANNING PUBLICATIONS UNDER FALSE NAMES: I haven't written on this, and am not planning to -- but I've got a title for anyone who wants to write about this:

The Right of the People Peaceably to Dissemble.

(A quick NEXIS search shows one previous use of this, in a 1990 Manchester Union Leader editorial -- great minds think alike, and so do we.)

 
[Eugene Volokh, 4:39 PM]
FATWA AGAINST INDONESIAN MUSLIM SCHOLAR? I have no idea of whether the source is reliable, but The American Reporter site reports that

In a move that might complicate Indonesia’s anti-terrorism campaign, a group of local Muslim clerics, or ulemas, issued a fatwa, or death sentence, Monday against Muslim scholar Ulil Abshar-Abdalla, saying that they have condemned him to die for blasphemy. . . .

The ulemas issued their joint statement in a press conference in Bandung, Indonesia's fifth largest city, about 115 miles south of Jakarta, claiming that the signatories include leaders of influential Muslim organizations such as Persatuan Islam, Muhammadiyah, and the Justice Party.

Persatuan Islam (United Islam) and Muhammadiyah are two of Indonesia's oldest Muslim groups. The 20-million strong Muhammadiyah is the second largest Muslim organization after the Nahdlatul Ulama, whose leaders include former President Abdurrahman Wahid. . . .

"There is a strong indication that a network of conspiracy exists to corner Islam. This should be investigated further but the death sentence, according to the shariah, is clearly given to anyone who swears word against Islam," said Athian Ali of the Indonesian Forum of Ulemas and Ummah. . . .

Ulil Abshar-Abdalla is the coordinator of the Jakarta-based Liberal Islam Network whose goals are to educate the Indonesian public about a "moderate interpretation" of Islam. . . .

There's much more factual detail in the story -- very interesting, if accurate.

 
[Eugene Volokh, 4:24 PM]
ALLEGIANCE TO AUTHORITY: Brad DeLong quotes the Catalan Oath of Allegiance as saying:

We, who are as good as you, swear to you, who are no better than us, to accept you as our king and sovereign lord, provided you observe all our liberties and laws -- but if not, not.

There's a lot to be said for this understanding of allegiance. (Thanks to InstaPundit for the pointer.)

     At the same time, this reminded me of the ending of Rudyard Kipling's story Her Majesty's Servants, which I think provides a valuable counterpoint to this oath (though not a contradiction -- Kipling would have sympathized a great deal, I think, with the oath as Brad DeLong quoted it):

[The troops] had made a big half-circle across the plain, and were spreading out into a line. That line grew and grew and grew till it was three-quarters of a mile long from wing to wing -- one solid wall of men, horses, and guns. Then it came on straight toward the Viceroy and the Amir, and as it got nearer the ground began to shake, like the deck of a steamer when the engines are going fast.

Unless you have been there you cannot imagine what a frightening effect this steady come-down of troops has on the spectators, even when they know it is only a review. I looked at the Amir. Up till then he had not shown the shadow of a sign of astonishment or anything else; but now his eyes began to get bigger and bigger, and he picked up the reins on his horse’s neck and looked behind him. For a minute it seemed as though he were going to draw his sword and slash his way out through the English men and women in the carriages at the back. Then the advance stopped dead, the ground stood still, the whole line saluted, and thirty bands began to play all together. . . .

Then I heard an old grizzled, long-haired Central Asian chief, who had come down with the Amir, asking questions of a native officer.

"Now," said he, "in what manner was this wonderful thing done?"

And the officer answered, "There was an order, and they obeyed."

"But are the beasts as wise as the men?" said the chief.

"They obey, as the men do. Mule, horse, elephant, or bullock, he obeys his driver, and the driver his sergeant, and the sergeant his lieutenant, and the lieutenant his captain, and the captain his major, and the major his colonel, and the colonel his brigadier commanding three regiments, and the brigadier his general, who obeys the Viceroy, who is the servant of the Empress. Thus it is done."

"Would it were so in Afghanistan!" said the chief; "for there we obey only our own wills."

"And for that reason," said the native officer, twirling his moustache, "your Amir whom you do not obey must come here and take orders from our Viceroy."

 
[Eugene Volokh, 2:56 PM]
DOES THE CONSTITUTION ENACT EXACTLY WHAT WE WANT? Stuart is quite right to point out that in many areas, "One's constitutional thought has a way of closely tracking one's preferences as to outcome." But here's a different question: Why is this more so in some areas (abortion, affirmative action, in some measure gun control), and less so in others?

     For instance, relatively few people think that the Constitution prohibits high income taxes, even if they think high income taxes are bad or even immoral. I suspect that relatively few people think that the Constitution protects people's right to use marijuana, even if they think that marijuana should be legal; some libertarians do think so, but relatively few. Some pro-free-market people believe that a wide range of economic regulations is unconstitutional, but most believe that most such regulations are generally constitutional, even if they're unwise or oppressive. Few opponents of a war on Iraq think such a war is unconstitutional (though some of them might take the view that "international law enacts exactly what I want"). Few supporters of broader welfare programs think that failure to enact such programs is unconstitutional (though in the past some did argue that welfare programs were constitutionally required).

     I can think of lots of explanations (prompting by Supreme Court precedent, specificity of the text, and others) for this phenomenon, but none seems to be completely satisfying. What is it that leads people to treat every policy question in some areas as a constitutional one -- but conclude that in other areas, some proposals might be loathsome but constitutionally permissible?

 
[Eugene Volokh, 10:47 AM]
MARIJUANA A GATEWAY TO MIDNIGHT PIZZA? I know little about drug policy, but Mark Kleiman knows a lot, so when he talks, I listen. Check out summary of a Rand report that he says undermines the "marijuana is a gateway drug" hypothesis. Great substance there, but I also liked this particular item, which is quintessentially Mark:

[T]he gateway hypothesis must be classed with what Mark Twain called "vagrant opinions, living without visible means of support." (Unfortunately, the social safety net underlying vagrant opinions of this type is quite strong, with no work requirement or five-year time limit.)

But, of course, marijuana causes munchies and a sedentary lifestyle, and therefore contributes to the obesity epidemic -- doubtless reason alone to ban it, I'm sure.

 
[Eugene Volokh, 10:41 AM]
STATE COURTS AND ABORTION RIGHTS: Jacob Levy responds to Slate's dig at conservative court-watchers.

 
[Eugene Volokh, 10:25 AM]
EUROPEAN JEWS KILLED DURING WORLD WAR II: So here's a question for you -- which European country that was invaded by the Nazis saved the largest number of its Jews during World War II?

     Denmark, one person said over dinner, and it seems that the Danes saved virtually all Danish Jews (as I understand it, because of non-Jewish Danes' extremely brave and decent conduct); but that was only a fairly small total numerically -- the question calls for the largest number, not the largest fraction.

     The answer, of course, is the USSR. According to the best statistics that I could quickly find online, 2 million of the 3 million Jews in the USSR survived the War -- I haven't checked the quality of this data, but it seems consistent with what I generally know of the matter. These included my parents and grandparents: My maternal grandmother and my then-4-month-old mother were evacuated from Kiev to Siberia as the Nazi armies were approaching; my maternal grandfather was evacuated to the Urals, where he worked in war production; and my paternal grandparents and my father spent the war in besieged Leningrad. And the USSR wins the title even though Russia had long been one of the most anti-Semitic countries in Europe, and the Soviet regime was itself quite anti-Semitic. I don't know any details of its attitude towards Jews in the early 1940s, but I know that there was plenty of official discrimination against Jews -- from the infamous charges of a Jewish Doctors' Plot in the early 1950s on down.

     So what's the moral of the story? Maybe there isn't: Maybe this is just one of these odd trivia questions with a result that is unexpected but unenlightening.

     But maybe there is a moral. The USSR saved its Jews not through decency, love of justice, belief in equality, or any action focused on Jews as Jews. It saved them by successfully resisting the Nazis -- by fighting (often brutally) a brutal enemy, and losing 15% of its population, Jewish and non-Jewish, in the process. It's no shame that the Netherlands or Greece didn't do this; they couldn't. My family, though, is alive -- I am alive -- largely because the Russians could resist, and did.

     So perhaps the moral is grim, and not very ethically helpful: When fighting the Nazis, there is no substitute for victory.

 
[Eugene Volokh, 8:31 AM]
ANOTHER POEM FOR SHARDS: POEMS OF THE WAR: This one is the fourth item we've published (not counting the original W.H. Auden with which we began). Go here to see the previous ones, and to see the submission guidelines -- I'd love to get more good material.

Geldings, by Alan Sullivan

They used to celebrate only three things:
the birth of a boy, the emergence of a poet,
and the foaling of a blood mare.
-Ibn Rashiq

Because they loved their horses
more than their swaddled wives,
they sang the poets' praises
of brief but impassioned lives
while squatting on their hassocks
and plucking polished ouds
or loading shot in flintlocks
to settle tribal feuds.

Today their grim descendants
truck-bomb embassies
to prove their independence
from Satanic dynasties,
yet no jihad or fatwa
purges polluted souks
where portraits of Madonna
outsell the Prophet's books.

To me it scarcely matters
if mullahs preach in skirts
or harems trade their chadors
for lycra pants and shirts.
Sheiks are counting profits
like geldings courting mares,
but I mourn for the poets,
not for the billionaires.

[alan at seablogger.com; originally published in Chronicles]

 
[Eugene Volokh, 7:07 PM]
TALKING ABOUT SLIPPERY SLOPES THIS FRIDAY AT UCLA: I thought I'd mentioned this already on the blog, but I can't find it my archives, so I thought I'd take the liberty of mentioning it again: I'll be talking about my Slippery Slopes article this Friday, December 6, from 1 to 3 pm, in the Marschak Colloquium program here at UCLA (Anderson School of Management, room C-301). If you're around L.A. and want to check this out, by all means please come -- it's open to everyone.

 
[Eugene Volokh, 3:04 PM]
LIBRARY REFUSES TO LET UNPOPULAR GROUP MEET: The Baltimore County Public Library system has apparently refused to rent a room "to the World Church of the Creator," "an anti-Semitic, anti-black organization that works for 'the survival, expansion and advancement of the white race.'" "Library Director James H. Fish . . . said the decision had nothing to do with the library's assessment of the views of the World Church of the Creator." Rather, the library seems to be arguing, the decision was based on the concern that letting the group meet at the library "would pose a threat to the safety of staff, patrons and property."

     Assuming that the library was indeed rejecting the group just because it's controversial -- possibly controversial to the point of its presence leading to demonstrations and perhaps ultimately violent clashes -- and not based on its viewpoint, we have a thorny and undecided question on our hands. The government may not suppress speech in "traditional public fora" (sidewalks, parks, and the like) or on private property because it might be controversial or even because it might lead to violence. But when may the government do this as to speech on its own property, even in places that the government has generally voluntarily opened up to speech, so-called "designated public fora" or, in some situations, "limited public fora"? (Here, it appears that space in the library has generlaly been open to groups who are willing to pay the modest room rental fee.)

     Lower courts have had to grapple with this for some time, without much of a clear rule emerging. Compare, e.g., Hopper v. City of Pasco (9th Cir. 2001) with DiLoreto v. Downey Unified School Dist. (9th Cir. 1999). The Fourth Circuit, where Baltimore County is located, grappled with a similar issue 30 years before, in National Socialist White People's Part v. Ringers, 473 F.2d 1010 (9th Cir. 1972), and held in favor of a group that wanted access to a high school auditorium that had been traditionally open for groups to meet; curiously, the group there was also racist and anti-Semitic, though this doesn't affect the constitutional analysis. But the court reached the conclusion only after it concluded that there wasn't enough evidence that the Nazi meeting would "endanger the property" by "result[ing] in violence and damage to the facilities" -- perhaps the result might have been different if indeed there was serious evidence that the property was endangered. What's more, there's been a good deal of First Amendment caselaw in the past 30 years, and while most of it has taken a broad view of free speech protections, the courts have at times also had some sympathy for the government's rights as proprietor.

     So the bottom line: The speakers' case here would be fairly strong, if the library has generally opened up the meeting room for public access, and if there's no specific, articulable reason to anticipate that the meeting will lead to violence. But the situation isn't completely clear. (Thanks to Glenn Reynolds for passing along the news story.)

 
[Eugene Volokh, 2:01 PM]
CHAVEZ V. MARTINEZ PREDICTION: After thinking some more about the case while preparing for this morning's radio spot, I feel confident enough making a prediction:

• Result: Chavez wins; the Supreme Court holds that failure to comply with Miranda simply means that the confession will be unusable at trial -- if the confession isn't used at trial, there's no violation of the Fifth Amendment and thus no violation of Miranda and no right to sue for damages. (Beatings of suspects would still be legally actionable, but not simply questioning without Miranda warnings, or continued questioning after the suspect says "I don't want to talk more," or "I want to call my lawyer.) My confidence in the prediction: High.



• Lineup: I'll go out on a limb and say 9-0, partly because even Justice Thurgood Marshall, writing in dissent in Quarles v. New York (1984), seems to have taken this view. My confidence: Moderate.



• Alternate lineup: If it's not 9-0, it might be 7-2, with Justices Stevens and Ginsburg dissenting. My confidence in this, if I'm wrong about 9-0: Relatively slight; I just think this is the likeliest of the non-9-0 outcomes, but I can imagine others that are also plausible.

 
[Eugene Volokh, 1:11 PM]
DIVERSITY, RACIAL PREFERENCES, AND RELIGIOUS PREFERENCES: Now that the Court is going to confront the question of racial preferences in university admissions, I thought I'd bring up again my small contribution to the academic debate. (By the time I got to the field, virtually every thing worth writing about racial preferences had already been written -- so this isn't by any means the most important argument, just my one relatively original one.) The entire article (fortunately only 18 pages long) is available on the Web, but here's a brief excerpt:

     Imagine the following statement from a public law school's admissions office:

     Much to our regret, we have found that many large religious groups -- for instance, fundamentalist Christians and devout Catholics -- are grossly underrepresented among our students compared to the public at large. We feel this deprives our students of the experiences, outlooks, and ideas that a diversity of represented religions can provide; it impoverishes discussions of such important topics as the law of abortion, the Establishment Clause, homosexuality, and others.

     We will therefore consider religion as one of the factors that can contribute to diversity. As it happens, we find we already have many Jews, many atheists and agnostics, and many relatively unobservant Christians and Buddhists. Because of this, we will give a preference to devout Catholics, devout Protestants, devout Buddhists, Muslims, and members of less common Christian sects.

     If your reaction is "Wow! Sounds great," this argument probably won't convince you of much . . . . But if it troubles you -- as it troubles me -- why do you find it troubling? . . .

     What justification is there for including race . . . in the consideration, but excluding religion? It couldn't be that we're reluctant to consider religion because it is a suspect classification -- the same is true of race. Perhaps it's that claims about religion are subject to falsification or exaggeration, but so are claims of compassion, overcoming disadvantage, or ability to communicate with the poor. Maybe it's that there is no perceived underrepresentation of various religious groups -- that the school will get a good deal of religious diversity in any event -- but on some campuses and in some departments (and certainly on some faculties) this underrepresentation does exist.

     So excluding religion as a factor but including race might suggest that the program is not narrowly tailored [to the interest in promoting intellectual diversity].

     It might also suggest, as underinclusiveness often does, that the actual purpose of the program isn't really the stated purpose; here, that the real purpose isn't actually diversity of experiences, outlooks, and ideas as such, but rather something else -- perhaps just racial or ethnic diversity, a justification that Powell's Bakke opinion specifically condemned.

 
[Eugene Volokh, 10:40 AM]
INTERACTIVE CHAT ON THE SUPREME COURT AND RACE-BASED AFFIRMATIVE ACTION: I'll be doing this at WashingtonPost.com starting 11 am Pacific today. Please note that my responses will likely be pretty short and not as detailed as I might like them be -- I think these chats call for pretty brief answers.

 
[Eugene Volokh, 10:22 AM]
SORRY, WRONG BLOGGER: When replying to a blog post, please look closely at who the author is, and e-mail that particular author. As you might gather, I've been getting a few misaddressed messages, so I thought I'd remind people about this.

 
[Eugene Volokh, 8:29 AM]
DAVID FRUM ON AL GORE'S NEW BOOK ABOUT FAMILIES: I haven't myself read the book, or the review that Frum quotes -- but if it's accurate, then it's a quite striking self-indictment by Gore.

 
[Eugene Volokh, 7:52 AM]
A BIT MORE ON WHAT CONSTITUTES A LOADED GUN IN CALIFORNIA: My sense of the matter -- that a gun is treated as loaded pretty much when it's loaded (except for some special rules applicable to certain state government buildings) -- is confirmed by People v. Clark, 45 Cal. App. 4th 1147 (1996) (registration required to read the case on findlaw). The view that a gun is loaded whenever it's stored near the ammunition (even when the ammunition isn't physically attached to the gun) seems to be a myth, though remember that even myths can get you in trouble if police officers believe them.

     Some readers mentioned that some believe that even a loaded magazine can itself be considered a loaded gun, even if it's not inserted into the gun or otherwise attached to the gun. That seems to be not so; the statute specifically discusses "loaded firearms," and Cal. Penal Code. sec. 12001(b) defines "firearm" as "any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion." Magazines clearly don't qualify under that definition.

     The only slight support I saw for this theory is a statement in Rupf v. Yan, 85 Cal. App. 4th 411, 432 n.7 (2000), that "Common statutory definitions of 'loaded' firearms included loaded and attached magazines or clips." But in context, it seems that this was just a clumsy way of saying that a firearm can be considered loaded if it has a loaded magazine or clip attached to it. Both the cases and the statute that Rupf cited following this sentence certainly took this view, and the text of Rupf likewise involved weapons that had loaded magazines attached to them.

     Probably not terribly exciting to most blog readers, but since I blogged about this before, I thought I'd fill in some more details.

UPDATE: A reader pointed me to a case, People v. Hale, 43 Cal. App. 3d 353 (1974), that some apparently cite for the proposition that a loaded magazine is treated as a loaded weapon under California law. But that case didn't discuss whether a weapon is loaded -- it held only that "A firearm disassembled into two or more parts, can nevertheless constitute an operable weapon," and thus covered by the law controlling carrying of concealed firearms. The law governing the carrying of loaded firearms wasn't involved here (and in context "operable" meant simply "assembled to the point that it qualifies as a firearm," and not "loaded"). The same is true of the other California case that Hale cited as a precedent, and of the similar Florida case that was cited.

      I feel quite confident about this, especially given the text of the statute, and the more recent Clark decision.

 
[Eugene Volokh, 7:48 AM]
THE GROWING EUROPE-AMERICA DIVIDE: InstaPundit has a great excerpt on this, from an article in The American Enterprise. I wish this weren't true, but I think it is.

     Competition is the nature of humanity (and probably of other species); Europe and America cooperated in the competition against the Soviets, but now we're competing against each other. Perhaps defense against Islamo-fascism will bind us together again temporarily, but it doesn't seem that likely right now.

     This competition need not be bad; with luck, for instance, it won't be violent. But it should remind us that we ought not presume that European words of advice or admonition are sound or even disinterested, any more than IBM would presumptively follow HP's advice about how to make computers.

 
[Eugene Volokh, 6:22 AM]
RADIO: I should be on KPCC-FM (89.3) today at 9 am (likely rebroadcast at 7 pm) talking about Chavez v. Martinez, the Court's latest Miranda case -- here's my quick summary of the issue, and why it's surprisingly important.