Author Archive | David Kopel

Colorado Sheriffs and the duty to enforce statutes

I represent 55 elected Colorado Sheriffs, plus one retired police officer, in a federal civil rights lawsuit that has been filed against two bills passed by the state legislature last March. Information about the case, including major case filings, is available at I am writing this post to correct a serious and inaccurate accusation that has been made about my clients in the press recently.

On Monday, the New York Times published an article titled “Sheriffs Refuse to Enforce Laws on Gun Control.” Today, National Review Online published an article by Charles W. Cooke titled “Sheriffs Have No Veto: Refusing to enforce constitutionally dubious legislation is no better when they do it.” The article equated the Colorado Sheriffs to President Obama for lawlessly refusing to enforce certain statutes. As a matter of law, this accusation is wrong.

As for President Obama: The U.S. Constitution mandates that the President “shall take Care that the Laws be faithfully executed….” Art. II, sect. 3. Critics of the President accuse him of violating this specific, controlling law in various ways, such as unilaterally delaying the business mandate in Obamacare. Let us assume for the sake of argument that at least some of these charges are accurate. If so, the President would be flouting a specific duty imposed by law.

As for the Colorado Sheriffs: Each of the Sheriffs has his or own policy for dealing with new anti-gun bills of HB 1224 (magazine ban) and HB 1229 (temporary private loans of firearms must be treated like firearms sales, and routed through a gun store, with attendant record-keeping, fees, etc.). It would not be correct to claim that the majority of the Sheriffs have said that they will categorically refuse to enforce the laws. But let’s consider one of [...]

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The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply [...]

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Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as [...]

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Evolving Christian Attitudes Towards Personal and National Self-Defense

Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense [...]

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Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate [...]

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Arthur Schlesinger and the Kennedy Assassination

The events of November 1963 and their aftermath are described in Chapter 9 of my undergraduate thesis The Highbrow in American Politics: Arthur M. Schlesinger Jr. and the Role of the Intellectual in Politics.

In brief: Schlesinger, John Kenneth Galbraith, and most of the rest of the White House immediately leaped to the conclusion that “the radical right” was the perpetrator. In the days following the assassination, the Kennedy White House staff split between those who were willing to work for Lyndon Johnson, and those who wanted to find a way to replace him as the the 1964 Democratic nominee with Hubert Humphrey or Robert Kennedy.

Johnson convinced Schlesinger, like almost all of the Kennedy staff, to stay on. But Johnson never gave Schlesinger any assignments, and Schlesinger resigned in early 1964. Schlesinger went to work on a biography of John F. Kennedy (A Thousand Days), and to campaigning on behalf of Robert Kennedy’s successful carpet-bagging run for a New York U.S. Senate seat.

Some observations from half a century later: liberals often had difficulty recognizing their ideological allies. Schlesinger et al. didn’t think Johnson was a liberal, although he turned out to be a much more aggressively liberal President than Kennedy had been. New York liberals, such as Americans for Democratic Action, and Jewish voters, didn’t think Robert Kennedy was a liberal, although as a Senator he (like the Democratic party) became much more liberal than John F. Kennedy had been.

The LBJ-RFK feud had much more to do with personality than with policy. The best study of this is Jeff Shesol’s excellent book Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade. Shesol finds plenty of blame on both sides, but ultimately it was RFK who obdurately refused LBJ’s overtures. [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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The Strange Career of Mississippi’s Bans on Gun Carrying

A few weeks ago, the Mississippi Supreme Court took another step towards dismantling the state’s legacy of Jim Crow gun control laws. If you had read the Mississippi statutes from that era, they would have seemed quite ordinary in an American context:

1. There was no laws against the open carrying of firearms in most public places.

2. Concealed carry required a special permit.

But in practice, Mississippi forbade all gun carrying, at least for persons whom local authorities wished to prevent from carrying guns. The prohibition was accomplished through two steps: First, concealed carry permits were only granted to persons who were special favorites of whoever was issuing the permits. Nominally, citizens could still open carry, without need for a permit. But the Mississippi courts defined “concealed” carry so broadly as to encompass all normal forms of open carry. See, e.g.L.M., Jr. v. State, 600 So.2d 967 (Miss. 1992); Martin v. State, 93 Miss. 764, 47 So. 426 (1908). As Chief Justice Roy Noble Lee explained in a concurring opinion in the L.M., Jr. case:

One of the first cases I undertook as a young lawyer was the defense of a man charged with carrying a concealed weapon. I thought his defense would be simple and easy until I learned what the statute meant. To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man’s hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person’s leg violated the statute; and that covering a weapon with feet, hands, or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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Origins of the English Militia

David Hume’s’s  The History of England (1778)  tells the story of the Danish conquest of England. (vol. 1, chapter 2 “The Anglo-Saxons”). After a series of wars, the Danes drove King Alfred off the throne, forcing him to flee incognito, disguised as a peasant. Alfred then

retired into the center of a bog, formed by the stagnating waters of the Thone and Parret, in Somersetshire. He here found two acres of firm ground; and building a habitation on them, rendered himself secure by its fortifications, and still more by the unknown and inaccessible roads which led to it, and by the forests and morasses, with which it was every way environed. This place he called Aethelingay, or the Isle of Nobles;t and it now bears the name of Athelney. He thence made frequent and unexpected sallies upon the Danes, who often felt the vigour of his arm, but knew not from what quarter the blow came. He subsisted himself and his followers by the plunder which he acquired; he procured them consolation by revenge; and from small successes, he opened their minds to hope, that, notwithstanding his present low condition, more important victories might at length attend his valour.

In fact, Alfred did emerge later, after having scouted the Danes by going into their camp disguised as a harper. He did eventually drive out many of the Danes, and subdue the rest. He then set about creating better conditions for security from invasion, and from the tyranny which the Danes had once imposed:

The king, after rebuilding the ruined cities, particularly London,e which had been destroyed by the Danes in the reign of Ethelwolf, established a regular militia for the defence of the kingdom. He ordained that all his people should be armed and registered; he assigned them a regular

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Intermediate Scrutiny bleg

What law review articles, treatises, etc., do readers recommend for someone who wants to understand the nuances of intermediate scrutiny? Not theoretical articles about whether I.S. is a good or bad idea; rather, examination of how it works in practice, include the sub-rules. [...]

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The Fiduciary Foundations of Federal Equal Protection

Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent

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NY appellate court rules 5-0 against Bloomberg soda ban

The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of  In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic Chambers opinion begins on page 22, following two other opinions released the same day.)

In New York State, the trial courts of general jurisdiction are the Supreme Court. The intermediate courts of appeal are the Appellate Division, which are divided into four geographic Departments, similar to the U.S. Circuit Courts of Appeal. The highest court is the Court of Appeals. Thus, Mayor Bloomberg has the option of trying to bring the case to the Court of Appeals.

The Appellate Division’s decision is quite straightforward: “[T]he Board [of Health] did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” If the Board’s ban on the sale of sodas larger than 16 ounces were actually a health rule (similar, for example, to a ban on the sale of infected meat), there would not be so many exemptions for certain types of vendors.

The Appellate Division applied the four-part separation of powers test from Boreali v Axelrod, 71 NY2d 1 (1989). The Appellate Division summarized the four Boreali factors:

First, Boreali found the PHC [Public Health Council] had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy”. Second, the PHC did not engage in the “interstitial” rule making typical of administrative

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