[Eugene Volokh, 8:51 AM]
THE LOS ANGELES / LAOS AXIS: Laos profits, though I doubt that it profits very handsomely, from the fact that its Internet country code is .LA. It can then get paid by some company that sells .LA addresses to people in Los Angeles (and, for all I know, in Louisiana) -- such as my favorite bakery, B & L, which has a Web page at http://www.cakes.la. How prescient the Laotian Founding Fathers were in naming their country Laos (though Nyos might have been even better)!

     Other countries who famously benefit from their abbreviations are Tuvalu (.TV) and the Cocos (Keeling) Islands (.CC). Less famous examples (or so I think) are Moldova, whose .MD was at one point marketed to medical doctors (I don't know with how much success) and Vanuatu, whose .VU has been used by at least one person I know whose last name is, well, Vu (he's Vietnamese-American).

     But think how many more opportunities there are! Mantra sites headquartered in Oman. Certain kinds of dating services in Burundi. Men's magazines in Equatorial Guinea. Knights' organizations in Nicaragua. The possibilities are staggering -- literally dozens of dollars to be made.

 
[Eugene Volokh, 7:32 PM]
BEING GAY IN PALESTINE: Check out this New Republic article (thanks to IndeGayForum.org for the original reference, and to Gil Milbauer for passing along the full link). A brief excerpt:

[A] young man he didn�t know invited Tayseer into an orange grove. The next day he received a police summons. At the station Tayseer was told that his sex partner was in fact a police agent whose job is to ferret out homosexuals. If Tayseer wanted to avoid prison, he too would have to become an undercover sex agent, luring gays into orchards and turning them over to the police. Tayseer refused to implicate others. He was arrested and hung by his arms from the ceiling . . .

On the other side, check out (again, thanks to IndeGayForum.org for the link) Queers Undermining Israeli Tyranny:

We know that as hatred and violence [caused by the war] consume [U.S.] society, some of it will be directed against lesbian, gay, bi and trans folks.

Uh, folks, any words on the hatred and violence consuming Palestinian society, some of it directed against lesbian, gay, bi and trans folks?

 
[Eugene Volokh, 6:41 PM]
BLIND HATRED IN THE CHICAGO SUN-TIMES: Reader Zach Barbera alerted me to a remarkable article in the Chicago Sun-Times. The author, Juan Andrade, starts by saying "I was deeply saddened to learn that Charlton Heston had been diagnosed as having symptoms of Alzheimer's," and goes on to express his sympathy for Alzheimer's sufferers and for his initial affection for Charlton Heston. But then he goes on to say the following -- pardon the long quote, but its hard to do it justice just by excerpts:

Heston's public image was reaching saintly status until he opted to trade his shepherd's staff for a rifle, and his saintlike image for the logo of violence: the National Rifle Association. Gun-control advocates like myself felt betrayed. With Heston's saintly status and star quality, you couldn't blame the NRA for enlisting his support. But last Saturday morning, it wasn't long before Heston reminded me and perhaps countless others why now he is more reviled than revered by millions of Americans.

In his taped remarks, Heston compared himself and his own resolve to John F. Kennedy, Dr. Martin Luther King Jr. and Ronald Reagan: three of the most revered names in America. He has nothing in common with any of them, save for Reagan, with Alzheimer's. Kennedy and King both were shot down in the prime of their lives by idiots with rifles. How dare Heston invoke their names! Just who does he think he is? What a pathetic display of pompous self-adulation. What a hypocrite! What a disgusting manipulator.

And Heston just couldn't leave bad enough alone. As if to somehow comfort us and assure us that he will always be with us, Heston said, ''I parted the Red Sea, but I can't part with you.'' ''I'' parted the Red Sea? Give us a break. That was Moses, the Deliverer. With all due respect to Heston, he parted ways with me and tens of millions of Americans when he joined up with the NRA to help give us an overly armed and undertrained society of gun owners, where criminals with superior weapons outnumber police.

I hope Heston steps down as president of the NRA. He'd like to stay through the remainder of his term. I would strongly urge him to drop the NRA and use whatever politically redeeming value he may have left to promote funding for more Alzheimer's research. I just hope he doesn't try to do both. Attacking Heston is not fun, especially after his diagnosis. But if he stays, he's fair game.

Wow. "Reviled." "Pathetic." "Pompous self-adulation." "Hypocrite." "Disgusting." One must be pretty bad indeed to be "fair game" for a tirade like that.

     Now it is of course perfectly fair for people to disagree with Heston's positions on the merits. There are decent, thoughtful, credible arguments on both sides of the gun control debate.

     But whenever people speak of "reviling" someone on the other side of the debate, observers are on notice that the speakers may be likely to be gripped more by emotion than by reason. This isn't always so; I'm proud to revile Osama Bin Laden, or for that matter David Duke. But Heston obviously sincerely believes that private gun ownership helps protect law-abiding citizens, and that the Constitution secures certain rights that it can quite plausibly be read as securing. If you think he's wrong on the facts or on the history, you may disagree, and even think that his actions unintentionally cause great harm. But "reviling" him? (Incidentally, I've heard lots of gun-rights rhetoric that's just as bad as this, and I cheerfully condemn most of it, too; it's just that it rarely gets a soapbox in the Chicago Sun-Times.)

     This feeling that the speaker may be gripped more by emotion than by reason is also reinforced when the speaker compounds his rhetoric with some very odd readings of the facts. (This is the "blind" part of "blind hatred.") "'I' parted the Red Sea? Give us a break." Uh -- wasn't that a joke? Of course Heston didn't part the Red Sea; he's an actor. Actors aren't the characters they play; most people, including actors, know that. When an actor says something like this, he's engaging in a mild bit of absurdist humor. Not cause for belly laughs, but, hey, when you're telling the world you have a horrible disease, the mild jokes are probably better than either no humor or too much humor.

     How about "Heston compared himself and his own resolve to John F. Kennedy, Dr. Martin Luther King Jr. and Ronald Reagan: three of the most revered names in America. He has nothing in common with any of them, save for Reagan, with Alzheimer's."? Well, according to this transcript of Heston's remarks (which I verified against the audio file), Heston actually didn't compare himself and his own resolve to these people.

     What he said was "I believe I'm still the fighter that Dr. King and JFK and Ronald Reagan knew, but it's a fight I must someday call a draw. I must reconcile courage and surrender in equal measure." He's not saying he's like them, or that his resolve is like theirs. He's simply saying that they knew him (a bit of mild name-dropping, but accurate and hardly so contemptible) and that he fought in causes that they agreed with (quite true -- Heston was involved in the civil rights movement). Surely the invective that Dr. Andrade hurls would require a bit more solid factual support than that. (Incidentally, as to King and Kennedy, is Dr. Andrade really suggesting that the gun control laws that he supports and Heston opposes would have been likely to stop determined, deliberate assassins, who are willing to break laws against murder but somehow would be stymied by gun controls?)

     So a week after a national figure announces his illness, the Chicago Sun-Times publishes a vitriolic barrage of personal insults against him, mixed with misrepresentations of what the figure actually said in his announcement. Doesn't reflect that well on the paper's editorial judgment, it seems to me.

     And as to Dr. Andrade, he got a Presidential Medal from President Clinton, and the site of the U.S. Hispanic Leadership Institute, which Andrade heads, reports that it was for his work in "leadership development and civic participation." I hope that the leadership he and his Institute develops, and the civic participation that they foster, are on a somewhat higher plane than that shown in his screed.

 
[Eugene Volokh, 3:49 PM]
MUSIC INDUSTRY SUING INTERNET SERVICE PROVIDERS: According to Reuters,

The world's largest record companies sued major Internet service and network providers on Friday, alleging their routing systems allow users to access the China-based Listen4ever.com Web site and unlawfully copy musical recordings.

The copyright infringement suit, filed in Manhattan federal court, seeks a court order requiring the defendants to block Internet communications that travel through their systems to and from the Listen4ever site. The suit says the plaintiffs have not been able to determine who owns the Web site.

     I pass no judgment on whether the legal system should allow such lawsuits; but as a matter of current law, the suit seems to be on firm ground. If a provider allows people to use the provider's services to download infringing material from a site, knowing that the site is being used to distribute infringing material (and at this point the providers do seem to know this), then the provider may be sued as a "contributory infringer." 17 U.S.C. § 512 gives the provider considerable immunity from money damages, but 17 U.S.C. § 512(j)(1)(B)(ii) provides that courts may issue "An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States."

     I should be on KPCC-FM later today talking about this.

 
[Eugene Volokh, 1:39 PM]
THE LOS ANGELES-LAOS CONNECTION, AS REVEALED TO ME BY MY FAVORITE BAKERY: My favorite bakery, B & L Gourmet Pastries, led me to recognize the little-known connection between my fair city and Laos. Honorable mention to the first person who e-mails me (volokh at law.ucla.edu) with the explanation.

     (By the way, if you're in L.A., you must go to B & L some time in the next month, while their amazing -- and relatively inexpensive, compared to most bakeries -- plum tart is still in season; they're at (310) 271-8333, 8556 W. 3rd St., right near the Beverly Center. No, I'm not a stockholder, but my family has shopped there for literally 25 years.)

THE WINNER: Steven Jens promptly figured this out (though I think he took advantage of a clue that I gave). If you can honestly say you figured this out without the clue (naturally, I'm not saying what the clue is), e-mail me and you'll get the Honorable Mention Super-Genius Class (without oak-leaf clusters, as I've discussed before).

UPDATE: The Honorable Mention Super-Genius Class award goes to my brother and co-blogger Sasha, which is not at all surprising. And, no, I didn't give him any special tips (though besides his being a Super-Genius, part of his success here may come from our thinking patterns being very similar). The answer will be posted tomorrow, so other readers can think about this if they want to.

 
[Eugene Volokh, 11:42 AM]
LINDGREN ON BELLESILES: Jim Lindgren has just put copies of two of his substantive criticisms of Michael Bellesiles' work on his law school web site (the links are on the left-hand side). The William & Mary Law Review piece, which focuses on counting guns in probate records (and which is cowritten with Justin Heather) has already been on the web for a while in other places, but his review of Arming America in the June 2002 Yale Law Journal ("Fall From Grace: Arming America and the Bellesiles Scandal") has generally not been.

     The Yale article covers mostly issues other than probate records, and I think absolutely devastates Bellesiles' thesis (while being calm, straightforward, and polite). Anyone who says that the problems with Arming America are just with the probate evidence or just with the quantitative evidence should read this article, which ends with an Appendix listing excerpts from over 200 original source documents, juxtaposing Bellesiles's claims with the sources he cites for those claims. (The version on Lindgren's site is only the galleys, because he hasn't yet gotten the final version in PDF format, but Lindgren says the galleys are very similar to the published result.) Much worth reading.

 
[Eugene Volokh, 11:25 AM]
LAWYERS ON CLONING: According to KaiserNetwork.org,

The American Bar Association yesterday, "go[ing] against the Bush administration," adopted a policy supporting human therapeutic cloning and opposing any government ban on such research, the Washington Times reports. The ABA's House of Delegates, which makes policy decisions for the group's 408,000 member lawyers, indicated support for the policy by voice vote during their annual conference in Washington, D.C. The policy, which also opposes legislation that would penalize scientists who engage in therapeutic cloning, states, "Governmental action that would ban all forms of cloning, and thereby foreclose all potential avenues of medical advancement offered by therapeutic cloning, poses a direct and serious threat to freedom of scientific inquiry." According to policy author Robyn Shapiro, director of the Center for the Study of Bioethics at the University of Wisconsin-Milwaukee, the policy supports only cloning research that is "conducted with proper legal, ethical and research safeguards," and it "explicitly" does not support human reproductive cloning.

I'm actually in favor of therapeutic cloning, but remind me: Why is it exactly that we should care about what the House of Delegates of a lawyers' organization says about whether cloning should or should not be allowed, something that is far outside most Delegates' or lawyers' expertise?

 
[Eugene Volokh, 11:19 AM]
WORD I DIDN'T KNOW: Someone who was giving me comments on my Slippery Slopes piece mentioned that a comment was "too aporetic." Had to look that up, so I thought it might be new to some of our readers as well -- it means "Full of doubts and objections; inclined to doubt." Good word to know as a reader, though I doubt I'll use it much as a writer.

 
[Eugene Volokh, 11:06 AM]
MASS MURDER AS A SPECTACULAR PIECE OF THEATER: Check out "Al Qaeda's Fantasy Ideology", a very interesting and thought-provoking Policy Review piece.

     The one drawback of the piece (besides its discussion of racial profiling at the end, which might or might not be correct as a bottom line, but is just too glib to work as an argument) is that it is too long -- but the pay-off in possible understanding of al Qaeda's motivations (though of course one has to recognize that it's just an educated guess) is quite substantial. Skim the stuff about fantasy ideologies generally, if you must, but be sure to read the second half, starting with the header "9-11 as symbolic drama" and the paragraph that begins "Most of our misunderstandings of al Qaeda's goals have come about for one fundamental reason . . . ." Here's one important sample:

First of all, it should be obvious that if our enemy is motivated purely by a fantasy ideology, it is absurd for us to look for the so-called �root� causes of terrorism in poverty, lack of education, a lack of democracy, etc. Such factors play absolutely no role in the creation of a fantasy ideology. On the contrary, fantasy ideologies have historically been the product of members of the intelligentsia, middle-class at the very least and vastly better educated than average. Furthermore, to hope that democratic reform would discourage radical Islam ignores the fact that previous fantasy ideologies have historically arisen in a democratic context; as the student of European fascism, Ernst Nolte, has observed, parliamentary democracy was an essential precondition for the rise of both Mussolini and Hitler.

Equally absurd, on this interpretation, is the notion that we must review our own policies toward the Arab world -- or the state of Israel -- in order to find ways to make our enemies hate us less. If the Ethiopians had tried to make themselves more likable to the Italians in the hope that this would make Mussolini rethink his plans of conquest, it would have had the same effect. There is no political policy we could take that would change the attitude of our enemies -- short, perhaps, of a massive nationwide conversion to fundamentalist Islam.

 
[Eugene Volokh, 8:33 AM]
DR. WEEVIL VS. KAUSFILES: Very amusing. I particularly liked the paragraph that started with "The phrase . . . ."

 
[Eugene Volokh, 8:20 AM]
SWIMMING COMPETITIONS AND SWIMMERS WITH FLIPPERS ON THEIR PROSTHESES: Hunter Scott, a Georgia teenager, had to have part of his leg removed because of a birth defect. This naturally caused trouble for him when swimming, but last summer he started strapping a flipper to his left leg, which let him be about 4 seconds faster than he was without it. He says that this just compensates for his lost leg; others say that it more than compensates, and gives him an unfair advantage. Should Scott be able to use the flipper in competition?

     That, I think, is a tough question, and reasonable minds can differ. I can certainly see why a league might conclude that no flippers may be used, either by the handicapped or by the able-bodied (which was the position of the local league, and which seems to be the position both of USA Swimming, the sport's governing body, and of the International Paralympic Committee). I can see why it might reach the contrary result. I can even see why it might want to have a case-by-case analysis to decide whether the flipper merely compensates for the loss of the leg, or more than compensates, though I'm not sure that this will ultimately work.

     Finally, much as I disapprove of such a result (I strongly oppose the Supreme Court's decision in PGA v. Martin, which held that disabled athletes may sometimes insist that a sport waive certain rules for them), I can even see some of the advantages of this question being decided by a court, based on evidence about the compensation vs. overcompensation question, and the importance of the rule to the sport. I think the disadvantages of this approach substantially outweigh the advantages, but there are some advantages.

     But this of course is not how this matter is being decided. Rather, here's what's happening:

1. Scott's parents threaten to sue the board and its members under the Americans With Disabilities Act.



2. "The board has no liability protection against lawsuits, meaning members could have been responsible for any damage awards. The league's $7,000 bank balance wasn't even enough to contest the threatened injunction . . . ."



3. The board therefore gives in, and changes the rule for Scott.



4. All 10 members of the board quit in disgust.



5. "In the meantime, the Atlanta swim league, whose membership includes 3,000 children, is in limbo . . . . It is operated by volunteers, and no one has stepped forward to run things since the board resigned."

     So-called bans on disability discrimination -- which are actually often requirements of discrimination, since they require preferential treatment for the disabled -- are a classic example of well-intentioned social engineering gone awry. When one first hears about them, the first temptation may be to say "Oh, well, that's good, since we want to help the disabled." Then, when one realizes that sometimes helping someone means hurting others (whether employers, other employees, other competitors, third parties who might be endangered, and so on), the second temptation may be to say "Well, that's true, there are pluses and minuses, but we can trust the courts to work it out."

     Except of course most cases aren't decided in court, but are settled, partly based on a guess about how the court will decide, but often largely based on who's willing to spend more money. Poor parents of disabled kids in this sort of situation will probably lose, because they can't realistically threaten to hire a lawyer -- at least unless they've got an activist group backing them. But a rich or even middle-class parent can realistically threaten to spend more (because it's his kid's welfare that he's understandably trying to improve) than a nonprofit, uninsured sports league. So the parent wins, and never mind the merits, especially when the law is so vague that you know that no such case will ever be just thrown out as frivolous.

     What a way to set the rules of sports -- not even in court, but in who's willing to spend more for lawyers. That's what feel-good legislation (signed by my fellow Republican, the elder President Bush, I'm sorry to say) has brought us.

 
[Eugene Volokh, 8:01 AM]
AH, THOSE DIPLOMATIC EUROPEANS: "Gerald Kaufman, a [Labor Party] member of [Britain's] Parliament . . . charged that Bush was 'intellectually backward' and said the president was surrounded by advisors 'whose bellicosity is exceeded only by their political, military and diplomatic illiteracy.' He made his remarks in Britain's Spectator magazine." (From today's L.A. Times.) So worldly! So suave, so subtle. We country bumpkins have so much learn from sophistication like that . . . .

     Having allies is good. Having allies who are actually willing to contribute manpower to the fight -- even better. But when our citizens are threatened, as I think they are by Iraq's weapons program (I'm not an expert on the details of the debate, but my sense is that when a Saddam Hussein kicks out U.N. weapons inspectors, at considerable potential cost to his regime, it's because he has something to hide), we need to act -- allies or not.

 
[Eugene Volokh, 6:03 AM]
DO MOST KILLERS HAVE A CRIMINAL HISTORY? From Robert Spitzer, The Politics of Gun Control 185-186 (1995) (emphasis added):

The primary legitimate substantive argument cited to oppose furhter gun regulations is that such regulations will only make it more difficult for law-abiding citizens to obtain weapons, especially for purposes of self-defense, whereas criminals will continue to gain access to weapons regardless of the law. . . .

     This assertion contains within it one fallacy -- that one can readily differentiate between "good guys" and "bad guys"; stated differently, the assumption is that guns in the hands of good guys are good, whereas guns in the hands of bad guys are bad. . . .

     Yet the statistics on gun-related deaths discussed in chapter 3 make clear that this Hollywood-cultivated dichotomy bears little relation to reality for most gun-related homicides, in that many homicides are the result of impulsive actions taken by individuals who have little or no criminal background and who are known to the victims. According to the government's Uniform Crime Reports from 1991, almost half of all murders that year (two-thirds of which were committed with guns) were committed by an acquaintance or relative of the victim . . . .

     The good guy-bad guy myth thus evaporates when most murders are examined.

An interesting argument, and on its face quite plausible -- and I have heard lots of people make this very argument before.

     But what happens when one looks at, say, the Bureau of Justice Statistics Felony Defendants in Large Urban Counties, 1998 report? (Note: This sample isn't fully representative, precisely because it focuses on large urban counties; but the counties do account for 50% of all the violent crimes in the country, and I have seen no evidence that suggests the results are any different in the other counties.) Well, it turns out (see tables 8-12), that:

• 81% of all homicide defendants have at least one arrest on their record.


• 66% have two or more arrests.


• 67% have at least one felony arrest.


• 56% have two or more felony arrests.


• 70% have at least one conviction.


• 54% have at least one felony conviction.

I've seen other statistics from other (generally either older or more geographically limited) sources, and they generally show that at least 70% of the criminal defendants in the sample had an arrest record (the only criminal history statistic that they tend to show).

     But what about the fact (and it is a fact) that about half of all murders involve people who know each other? Well, criminals have relatives, friends, and acquaintances, too (and of course "acquaintance" can describe many sorts of acquaintances -- drug dealers are acquainted with their customers, gang members are acquainted with their rivals, and prostitutes are acquainted with their patrons). Yes, if you are acquainted with lots of criminals, you might fall victim to an acquaintance murder by one of those criminals. On the other hand, if most of your acquaintances are law-abiding people who don't have an arrest record, then you'd probably be a lot safer.

     As I've mentioned before, there are lots of sensible, factually accurate arguments in favor of various gun control measures, though I generally end up disagreeing with them. But claiming that "[t]he good guy-bad guy myth thus evaporates when most murders are examined" seems to be a mistaken: It doesn't evaporate -- and it isn't a myth.

 
[Eugene Volokh, 6:48 PM]
VISITORS: It looks like we'll be above 5000 unique visitors again today -- one of probably about 5-10 times that this has happened -- largely thanks to links from InstaPundit and from Slate's "Other Web Sites." Thanks to the linkers, and thanks especially to the visitors; we hope you've liked what you've seen.

 
[Eugene Volokh, 6:44 PM]
ATTORNEY GENERAL ASHCROFT'S MEMORANDUM TO CHIEF FEDERAL PROSECUTORS ABOUT THE SECOND AMENDMENT: For the text of the Attorney General's memorandum to all U.S. Attorneys (that's what the chief federal prosecutors in all the districts are called) about the individual rights view of the Second Amendment, see the Appendix in this brief. The memorandum instructs United States Attorney's Offices to "promptly advise the Criminal Division of all cases in which Second Amendment issues are raised, and coordinate all briefing in those cases with the Criminal Division and the Solicitor General's office," and closes by pointing out that

As the Supreme Court has long observed, the mission of the Department "in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

Nothing terribly new, but some people were talking about this memo, so I thought I'd pass along the text and a reliable source.

 
[Eugene Volokh, 6:07 PM]
MORE ON FISKING: Tim Blair graciously declines the credit I gave him for coining the term fisking, pointing out that some Norwegians had beaten him to it. Those darned Norwegians: Setting up Josef Stalin fan Web sites, beating us to the punch on all the good words, raiding the European coastline. By the way, would trying to make someone eat lutefisk be lutefisking?

 
[Eugene Volokh, 6:01 PM]
LITTLE-KNOWN FACT: My friend Michael Klein points out that

The National Transportation Safety Board (NTSB) recently divulged they had covertly funded a project with the US auto makers for the past five years, whereby the auto makers were installing "black boxes" in four-wheel drive pickup trucks in an effort to determine, in fatal accidents, the circumstances in the last 15 seconds before the crash.

They were surprised to find in 40 of the 50 states the last words of drivers in 61.2 percent of fatal crashes were:

     "Oh, Shit!"

Only the states of Tennessee, Florida, Kentucky, Virginia, Texas, Alabama, Arkansas, Mississippi, North Carolina, and Georgia were different, where over 89.3 percent of the final words were:

     "Hold my beer and watch this."

(Author unknown.)

 
[Eugene Volokh, 4:21 PM]
FREAK BROTHERS: Here's a subset of the last 20 search engine searches that brought people to our site, as reported by Extreme Tracking:

15 Aug, Thu, 13:23:12 Google: "walmart" union "labor attorney "
15 Aug, Thu, 14:37:47 Google: "dahlia lithwick" "clerked for"
15 Aug, Thu, 14:41:44 Google: "freak brothers " pdf
15 Aug, Thu, 14:55:20 Yahoo: camisa gotica
15 Aug, Thu, 14:55:39 Google: al pacino soundboard
15 Aug, Thu, 15:03:48 Yahoo: "in re territo"
15 Aug, Thu, 16:02:44 Google: jack rakove
15 Aug, Thu, 16:21:01 Google: floterial -hampshire
15 Aug, Thu, 16:21:16 Google: Conspiracy

(The others were mostly just what you'd expect, e.g., "Volokh".) Our favorite is, of course, "freak brothers."

 
[Eugene Volokh, 2:11 PM]
ONE MORE SLATE UPDATE: Bryan Curtis kindly alerted me that the original Explainer now includes -- as its very first paragraph, and in italics -- the following:

Addendum, 8/15/02: On Wednesday, Hallye Jordan, a spokeswoman for the California attorney general's office and source for this Explainer, told the New York Daily News, "California law doesn't require you to give up your weapons if you have Alzheimer's." That seems to contradict what Jordan told Slate the previous week. Jordan has not returned Explainer's phone messages to clarify the discrepancy. We'll let you know when she does.

 
[Eugene Volokh, 1:36 PM]
TO SLATE'S CREDIT: Slate's Other Web Sites links to this blog's disagreement with them about Charlton Heston, Alzheimer's, and guns; the entry is labeled, with eminent fairness, as

Charlton Heston, Alzheimer's, and Guns
Eugene Volokh questions Slate's "Explainer."

I hope that -- of course assuming that my analysis is right, and that it persuades them -- they will at some point explicitly retract their original piece. But I assume that they're investigating the matter right now; and in the meantime, their acknowledging the disagreement is much to their credit.

 
[Eugene Volokh, 1:20 PM]
PRO-LIFE LICENSE PLATES: Check out John Leo's interesting piece on the subject (link via Sabertooth Journal).

 
[Eugene Volokh, 1:17 PM]
BLOG-CHILD! Reader David Mecklenburg writes us:

My blog is up for public viewing. . . . I consider you the inspiration for creating my own blog. You can add me to your list of blog children, if you have a list.

We are extremely flattered, and much encourage people to check out the new arrival.

 
[Eugene Volokh, 11:51 AM]
A BIT MORE ON BEARING ARMS: Joe Olson, who teaches at Hamline University School of Law in St. Paul, writes:

I read your recent blog.

In a nutshell, this is what I tell my [Second Amendment] Seminar students.

The framers were themselves revolutionaries and they understood that government, no matter how long nor "properly" established, could go bad. At that point the citizens had a right to reform that government with force of arms if needed. The Declaration of Independence recognizes this fact.

But, how to recognize the "magic moment" when the new federal government has gone too far?

Here, the framers punted. In the Constitution, they don't say anything about WHEN to discipline government gone bad. A government that can't be effectively disciplined through the ballot box, for example.

What they did was to leave in place the infrastructure (the armed citizenry) that makes the threat of revolutionary change possible and credible.

They believed the existence of that countervailing force would deter government from going too far. If not, the people could then act.

But prior to the magic moment, civil disorder would be a crime and government could be expected to try to put down any actual insurrection. "Keeping" (owning, carrying, etc) and "bearing" (training and exercising, perhaps as units) is allowed but "attacking" (including, perhaps, merely parading for the purpose of intemidating local officials) the government is not. This is the deterrent that operates on the armed citizens.

Both sides are deterred. Government by the armed citizenry and the armed citizenry by the consequences of acting too soon (punishment of some sort).

So, how do you know if the "magic moment" has arrived?

Simple test, you pick up your gun and you march out to the street, if your neighbors are also out there similiarly armed, it's time. If no one is there, go home and watch, it's not time yet.

When Paul Revere rode, the neighborhood arose. It was time.

I think this is generally a very good and clear way of putting it (though it necessarily oversimplifies some things).

     This analysis is of course on many levels deeply unsatisfying: It doesn't set forth any clear substantive test for when revolution is proper. Its procedural test (which I think is intentionally a bit oversimplified) doesn't give any assurance that revolutions will be just. Under this analysis, it may well be that even an unjust revolution will prevail, and that even a just revolution will be suppressed, and the revolutionaries executed. And, most obviously but worst of all, it contemplates action that will often involve many thousands -- or millions -- of deaths, as the American Revolution, the Civil War, and various other revolutions, successful and otherwise, have involved.

     But I think this is because the world is itself deeply unsatisfying. Government is necessary to protect us, but sometimes it itself becomes the greatest threat to us. Force is deeply unappealing, but sometimes it's the only way to protect our lives and liberties. We rightly fear the prospect of civil war, but we recognize that it's sometimes necessary.

     One question that the Framing generation faced is how to organize the government in a way that would make tyranny least likely; they tried to do the best they could, through devices such as the separation of powers among the three branches, bicameralism and the executive veto, judicial review, constitutionally secured rights (both in the body of the Constitution and the Bill of Rights), enumerated powers, and the dual sovereignty of the federal government and the states. But a related question was how to make the citizenry capable of deterring -- and, if worst came to worst and the peaceful checks and balances failed (as unfortunately all checks and balances may do), fighting -- tyrannical power. The Framers' solution, embodied in the Second Amendment, was to make sure that the citizenry remained armed, and that the government did not have a monopoly of armed force.

     The Framers' solution may have been unsound then; it may have become unsound now; or it may still be valuable today. I honestly don't know the answer to that question. But it seems clear to me that this (the maintenance of an armed citizenry as a deterrent to tyranny) was indeed the Framers' solution; and that this solution is not at all inconsistent with the recognition that, yes, of course, if you revolt and you lose, you're in deep trouble.

 
[Eugene Volokh, 8:37 AM]
BEARING ARMS, REVOLUTIONS, AND THE LIKE: A reader writes quotes my blogging that "One can believe that a strong government, including a strong federal government, is necessary, but also recognize that such a government's power should be checked by, among other things, the citizenry being armed," and responds:

OK, so in your opinion there are situations where it is ethical and/or legal for citizens to take up arms against a duly-elected, democratic government?

Of course as to "ethical"; I think few people would think otherwise. Imagine a duly-elected, democratic government that decides to exterminate some racial minority group (not, unfortunately, a ridiculous proposition) -- is it ethical for citizens to take up arms against this government to defend themselves? Of course. Now one might say that this government isn't "democratic," even if it's elected through democratic procedures -- but that just makes the definition circular ("democratic" = "the sort of government that doesn't do the things which would justify people taking up arms against it").

     As to "legal," that's a tougher question, which I'll get to in responding to the reader's further asking:

And our Constitution countenances this? Surely this isn't a "check" the way the judiciary is a "check" on the excesses of the legislature. Under what criteria is it acceptable for a political minority to take by force what it cannot win at the ballot box?

     So here's the complex part: No, our Constitution doesn't give people the right to revolt against the government -- a few state constitutions do assert such a right, but no constitution can secure such a right, if only because any government will, once faced with a revolt, take measures to protect itself. That's the nature of government, both good government and bad.

     But it seems to me clear that the Framers envisioned that the citizens' right to possess guns is useful for deterring government oppression, and for fighting back against government oppression. Of course those who do fight back (should such a fight be necessary) would be punished if they lose, just as the American Revolutionaries would have been punished if they had lost. As I said, the Constitution doesn't and can't secure a "right to revolution" in the sense of a legal immunity against being prosecuted for revolution. But it does secure the right to own the tools of revolution.

     I say that this is clear as a historical matter because the evidence is just so powerful. Just to give a few examples,

1. Sir William Blackstone, whose 1765 Commentaries on the Laws of England were tremendously influential in the colonies, wrote about the narrower English right to have arms that it is one of the "outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property," because it is "a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."



2. James Madison, in Federalist No. 46 wrote that "the advantage of being armed, which the Americans possess over the people of almost every other nation" helps "form[] a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of" -- and distinguished America against Europe, where "the governments are afraid to trust the people with arms," arms that might help the Europeans "shake off their yokes."



3. Justice Joseph Story, the author of the leading early 19th-century constitutional law treatise, the Commentaries on the Constitution (1833), wrote that "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

I can give more examples, but you get my drift.

     Now this having been said, I can't be sure that this approach still makes sense today. Perhaps the armed citizenry can no longer help deter government tyranny (though note that for the right to work, it needn't be perfect -- it need only be enough that it could deter some potential tyranny, even if it can't deter all). I can't tell for sure.

     But I am quite confident that the Framers included the right to bear arms at least in part to deter government tyranny. My correspondent closes "This is the problem I have with 'right-to-bear-arms' logic. It leads to the conclusion that democracy doesn't work, that eventually someone is going to have to give up on voting and reach for their gun." The Framers were, after all, revolutionaries who had just fought against a regime that was, by the standards of their time, relatively liberal and democratic. They did seem to believe that all governments risk not working, and that for each of them there's eventually a chance that someone is going to have to give up on the normal rules of the game and reach for their gun -- though, if we're lucky, the very fact that the citizenry owns guns might help deter this necessity. They may have been right or they may have been wrong in this; but I'm pretty certain that this was the dominant view among the Framing generation, and an important purpose of the "right to bear arms" that the Framing generation enacted into law.

 
[Eugene Volokh, 8:13 AM]
URINE TESTS, RELIGION, AND GUNS: A reader writes:

I am taking your lead and trying to stay clear of the dark side. However, I find myself concerned over how we are willing and expected to forfeit personal rights lately. I understand that we all need to forfeit some rights in the name of national security during this War on Terrorism. But I am surprised how automatic public acceptance has become.

     More and more students will be required to pee in a cup this year, without suspicion or probable cause, in our War on Drugs. I don't hear much dissent coming from adults or students. Are the kids indifferent or have they been totally beaten down? Neither answer provides much comfort.

     It seems as though this defacto Christian nation expects non-Christians to "lighten up" about personal religious rights in the face of government endorsement of religion. I still can't find anyone outraged that the prayer at President Bush's inauguration on the steps of the Capitol and at the lunch in the rotunda concluded with "in Jesus' name we pray."

     Of course, you have documented the efforts to remove "right" from the right to bear arms.

     Have you published or opined on this? Do I need to "lighten up"?

I agree that we should be continually concerned about restrictions on our rights; but we also need to be careful about what's a "right" and what isn't. We're rightly skeptical (or we should be!) when people claim that sex offenders' "constitutional right to privacy" is being violated by revelation of their identity -- because the Constitution should not be interepreted as securing a right to stop the government from truthfully revealing matters of public record that may affect one's fellow citizens' well-being. We're rightly skeptical when people claim that a state's waving a Confederate flag violates people's right not to feel offended, because we don't think there generally is such a right. (I think states shouldn't do this, but not because of a constitutional rights problem.)

FOURTH AMENDMENT: So let's start at the beginning: The rights of K-12 students to be free from mandatory drug tests. I'm not sure exactly where I stand on this -- but I do think that this is at least a very tough question. These aren't adult private citizens; they are minors who are being educated in government-run schools. There are good reasons for all sorts of rights, from free speech rights to privacy rights, to be quite different in that context; to give one example from the free speech area, the fact that I'm allowed to wear a jacket that says "Fuck the Draft" in public (Cohen v. California, 1971) doesn't mean that I should be allowed to wear a similar T-shirt to a junior high school class.

     Likewise, when schools take custody of children and try to assure their safety, it makes sense that they should have more investigative power over their children than the government has over people on private property. I realize that government-run schools should be subject to somewhat more constitutional constraints than privately-run schools, because the government (which, unlike private schools, is bound by the Bill of Rights) is running them. But it doesn't follow that they should be as constrained as the government is when enforcing laws on the streets or in private homes.

ESTABLISHMENT CLAUSE: As to endorsement of religion, the question is complex in other ways. First, there is a serious dispute as to whether the Establishment Clause even gives us a "right" to be free of government endorsement of religion; I actually agree with Justice O'Connor that it does, but it's far from an open-and-shut case. But second, government officials have rights of their own; and many of them feel moved to express themselves religiously. Trying to bar all acknowledgments of religion by government officials in the name of preventing offense to listeners seems to me more illiberal than liberal.

     It's not easy, I think, to find the precise place to draw the line. My tentative sense is that government bodies generally should not endorse religion, perhaps subject to an exception for very longstanding practices (the exception being justified by the fact that it's hard to read the Establishment Clause as prohibiting what its very Framers themselves did, such as legislative prayers); but when a government official is expressing his own views -- at least outside the K-12 school context -- he should generally have the right to express his religious views as well. True, the government official might be partly speaking on behalf of the government and partly on behalf of himself, which helps make the matter complex. But to insist that he must shut up about matters that are fundamentally important to his worldview in order to avoid offending people who have a different worldview seems to me to be unjustified.

     Moreover, if one's concern is that things are getting worse, then this seems to be the last place to raise an objection -- the government is more constitutionally constricted in its ability to endorse religion than it ever has been in U.S. history, at least up until the late 1980s. The rule that the government may not constitutionally endorse religion is a very recent innovation; the precise details of the rule are being worked out, and the line may travel a bit this way and that. But if one thinks that the government generally shouldn't be endorsing religion, one should feel a lot better now than one did 20, 30, or 40 years ago.

RIGHT TO BEAR ARMS: Likewise as to the right to bear arms, at least to a point. Unfortunately, there are some erosions of the right -- but at the same time it's also been strengthened. For the first time since the 1930s, a circuit court of appeals has held that the right is an individual right. For the first time in recent decades, the Department of Justice has taken the same view. The number of states in which any law-abiding citizen can get a licensed to carry a concealed weapon has risen from 9 in the mid-1980s to over 30 today (and recall that the bans on concealed carry originated in the early 1800s). And whatever threats there might be to the right to bear arms, they do not seem to flow from the War on Terrorism.

     We should indeed be vigilant about genuine risks to liberty. But we should also look carefully at exactly how "liberty" is being defined, and whether each claim of constitutional right is indeed a sound claim. And even when the claim is sound, we should also maintain a sense of perspective about the magnitude of the risk, and the overall health of our system of rights generally.

 
[Eugene Volokh, 5:32 PM]
ODD ITEM ON HESTON, ALZHEIMER'S, AND GUNS: According to a New York Post story today,

Slate.com contends that Heston will have to hang up his holster because California law "requires that anyone who represents a threat to others because of a mental disorder or illness can't own a firearm." If Heston's doctor deemed him unfit, the physician would have to alert a local district attorney, who could then seek to have Heston's gun permits revoked, according to California justice officials consulted by Slate.

     But Hallye Jordan, a spokeswoman for the California attorney general's office, doubts the actor fits the profile. "California law doesn't require you to give up your weapons if you have Alzheimer's," Jordan tells us.

I agree with Jordan, as my post last Friday (the day the Slate article was written) makes clear. But what's odd is that according to the Slate article itself, Hallye Jordan seemed to be one of those very California justice officials consulted by Slate. Sounds like a possible miscommunication on someone's part (and I don't know whose).

 
[Eugene Volokh, 5:25 PM]
QUOTE OF THE DAY: "So it is that in our time, the name Cicero is more likely to evoke an Illinois community noted for its laid-back approach to matters of public probity than one of the most influential voices of the last 2,000 years," writen by Jeff Greenfield in a Washington Monthly book review of the new biography of Cicero.

 
[Eugene Volokh, 2:42 PM]
HUGH HEWITT SHOW: I should be on the Hugh Hewitt Show today at around 4:30 pm, on their blog segment.

 
[Eugene Volokh, 11:32 AM]
RIGHT TO CONSUME HALLUCINOGENS FOR RELIGIOUS PURPOSES: A federal district court has just held (UDV-USA v. Ashcroft (Aug. 12)) that people who use a certain hallucinogenic drug (hoasca, which is indigenous to Brazil) for religious purposes are entitled, under the Religious Freedom Restoration Act of 1993, to an exemption from federal statutes that bar the importation, distribution, and possession of the drug. The decision focused closely on the particular facts of the case, so it may not be extensible to other drugs; but it does seem noteworthy nonetheless, even though it apparently hasn't hit the media yet. The religion, by the way, is O Centro Espirita Beneficiente Uniao do Vegetal (UDV), which was founded in Brazil (at least in this incarnation) in 1961 and which "blends Christian theology with traditional indigenous religious beliefs."

     Note that RFRA -- a federal statute that grants religious objectors exemptions from generally applicable laws, unless applying the particular law to them would be "narrowly tailored" to a "compelling government interest" -- was held unconstitutional in City of Boerne v. Flores (1997) as to state laws. It remains in effect, though, as to federal laws. For more on RFRA and the Free Exercise Clause, see the first few pages of this article.

     Note also the cameo apperance in the opinion by Mark Kleiman, my friend and UCLA colleague (he teaches in the public policy school), and one of the leading drug policy experts in the country; he was an expert witness.

 
[Eugene Volokh, 11:10 AM]
UNDERGRADUATES: It turns out that I'll be teaching an undergraduate seminar this Fall Quarter -- just a pass/fail 1-hour-per-week seminar on gun control, but I'm told that students in these seminars tend to be pretty enthusiastic, so I'm much looking forward to it. I wonder how different the undergrads will be from law students; I guess I'll find out soon enough, at least as to this oddly self-selected batch of undergrads.

 
[Eugene Volokh, 9:48 AM]
ARISTOTLE'S LAW PETITION CONFOUNDS BLASE BERKELEY": "'I see the law I've proposed as an (art) installation, one which has the potential to operate in infinite space while occupying no space,' said the 30-year-old performance artist, who lives in San Francisco."

     In principle, I oppose enacting laws as an artistic statement -- and I oppose "operate in infinite space while occupying no space" artobabble. (Sorry to be so mundane, dude, but the law occupies some space in the statute book, and Berkeley, thankfully, isn't infinite space.)

     But this is amusingly absurd enough that I have to approve. Especially for Berkeley. (Thanks to reader Adam Bonin for pointing this out.)

 
[Eugene Volokh, 8:56 AM]
FACT-CHECKING: From Interview with Michael Barnes, President, Handgun Control, Inc., 6 Georgetown Public Policy Review 31 (2000):

     1. "Compare Seattle, Washington to Vancouver, British Columbia, two almost identical cities -- very similar size, and very similar economic breakdown in terms of the number of poor people and rich people, very similar ethnic breakdown." Actually, the ethnic breakdown is quite different, as the study to which Barnes is apparently referring (Sloan et al., 319 New Eng. J. of Med. 1256, 1257, 1260 (1988)) acknowledged but didn't stress -- Seattle is 9.5% black and 2.6% Hispanic, while Vancouver is 0.3% black and 0.5% Hispanic, and the homicide rates among whites in Seattle were almost identical to the homicide rates among whites in Vancouver (6.2/100,000 in Seattle, 6.4/100,000 in Vancouver).

     2. "In Seattle, how many people die every year from guns? About 300. How many people in Vancouver, right next door, just across the border in Canada? About two." According to the Sloan study -- and if I'm mistaken and Barnes is referring to some more recent Seattle/Vancouver comparison, I'd love to hear it, but the Sloan study is the most famous one -- there are about 24 gun homicides per year in Seattle and 4 per year in Vancouver. Sloan et al. also did a study of gun suicides, 322 New Eng. J. of Med. 369 (1990), for King County and the Vancouver metropolitan area, each of which have about 2.5-3 times the populations of Seattle and Vancouver proper; they found 274 firearms suicide deaths for King County per year and 119 for the Vancouver metropolitan area. Accidental gun deaths would surely be under 10 per year in Seattle (the fatal gun accident rate for the whole country has fallen from under 7 per million in the late 1980s to about 3 per million now). You can mix and match these any way you want, and there's absolutely no way you can get a 300-to-2 ratio.

     3. "The media's role is enormously important. . . . Just little things: if you're watching a TV show and a police officer stops somebody who has a gun and says, 'Do you have a license for that gun?' That shows that the writer of that script did not know that in this country you don't need a license." Well, if a police officer "stops somebody," that presumably means stops them in some public place -- police officers are rarely said to "stop somebody" when they confront the somebody in his home. In all states except Vermont, one in fact may not carry concealed unless one has a license (or, in some states, one may not carry concealed at all unless one is in a small group defined by profession or former profession, such as police officers). (In some states, one may carry unconcealed guns without a license, but I take it that this isn't what Barnes was referring to, since this is quite rare behavior.)

     4. "Over 80 people are killed every day in the United States by guns. The numbers are just staggering with respect to gun violence in this country." Actually, if you check the Centers for Disease Control database (1999 data), it turns out that the number is 30 per day in homicides, 2.5 per day in accidents, 1 per day in police shootings, 1 per day in cases where the intent is undetermined, and 45 per day in suicides. Are suicides "gun violence"? I'm not sure, but I wonder whether most readers would have understood that "killed every day . . . by guns" and "gun violence" included suicides as more than half of the statistics.

     5. "We also feel strongly that guns should be treated the same way other potentially dangerous products, such as automobiles, are. . . . We'll be pushing for treating guns the same way society treats automobiles; that is, licensing and registration of the gun." Actually, here's how cars are regulated, at least in my state of California: No federal licensing or registration. Any person may use a car on his own private property without any license or registration. Any adult may get a license to use a car in public places by passing a fairly simple test that virtually everyone can pass. Is HCI really asking that guns be treated "the same way"?

     The funny thing is that Barnes could have made a solid argument that (1) there are indeed a lot of gun deaths, (2) guns should be more regulated, and (3) many Western countries have both fewer guns than the U.S. and a lower homicide rate. I think that on balance these points still do not support most gun control proposals, but that's a complex and interesting question.

     But instead, the argument too often rests on errors, or at least on characterizations that omit some pretty material details. Too bad -- but a reminder that one shouldn't believe everything one reads, especially in the gun debates.

 
[Eugene Volokh, 6:42 PM]
NEOETYMOLOGY: Reader Matt Haws suggests that Tim Blair may have been the first to use "Fisk" as a verb meaning "a thorough and forceful verbal beating of an anti-war, possibly anti-American, commentator who has richly earned this figurative beating through his words," in this Dec. 19, 2001 post. Haws points out that Blair had used "Fisk" to just mean "beat" before, but the Dec. 19, 2001 seems to be the first in which the modern meaning fully jelled.

     If anyone can point to an earlier usage in this sense, please let me know.

 
[Eugene Volokh, 3:59 PM]
"FORCED ABORTION": I generally agree with InstaPundit on most things, but I'm not sure that his "forced abortion" post is quite right.

     The "forced abortion" policy, according to the article that he cites, was that emergency medical technicians would be fired if they got pregnant. This rule probably violated legal bans on pregnancy discrimination, but is it quite accurate to call it a forced abortion policy?

     Imagine that lack of pregnancy was a "bona fide occupational qualification" for the job -- for instance, for the job of actress playing a slim, sexy character (the Hunter Tylo lawsuit, I thought, was silly, and I think that if Spelling had appealed he would have won on BFOQ grounds), or for that matter the job of soldier. Would we say that a "no pregnancy" policy there was a "forced abortion" policy? It would still have the effect of pressuring people who got pregnant to get an abortion -- but I think we'd say that this effect didn't make it a "forced abortion" policy, just like a policy of hiring only slim actresses wasn't a "forced liposuction" (or even "forced starvation") policy.

     Now I suspect that lack of pregnancy is not a BFOQ for emergency medical technicians; so this makes the policy illegal. But it doesn't affect, I think, the "forced abortion" question. Either all these examples -- the vixen actress can't be pregnant, the soldier can't be pregnant, the EMT can't be pregnant -- are "forced abortion" policies (which I doubt), or all aren't.

 
[Eugene Volokh, 3:26 PM]
MORE FOR THE DATA JUNKIES: Check out this query page for the FBI's Supplemental Homicide Reports, or this one, or this one. Wow. I wish they had more search categories, and more finely granulated age, race, etc. subdivisions, but still -- wow. The Internet is a wonderful thing.

 
[Eugene Volokh, 3:07 PM]
FIREARMS REGULATION SEMINAR SYLLABUS: Just finished updating the syllabus for my firearms regulation seminar class; if you're interested, you can find it here. Unfortunately, most of the sources aren't online, so you can't easily read along, but I just thought that some people might want a sense of the way this sort of class can be taught. And, hey, this is a blog, so this stuff doesn't have to actually be useful.

 
[Eugene Volokh, 1:15 PM]
LAWFUL COMBATANT IMMUNITY: When an enemy soldier shoots at an American soldier, he can get killed for it -- but it's not a crime, and once the enemy soldier is taken prisoner, he can't get punished for it. Huh?, you might say. Isn't he trying to kill people, and working with others who are trying to kill people, which makes him guilty of murder (if he succeeds), attempted murder, or conspiracy to commit murder? No, it turns out, because of "lawful combatant immunity," which "forbids prosecution of soldiers for their lawful belligerent acts" -- lawful, that is, under the laws of war -- "committed during the course of armed conflicts against legitimate military targets." Soldiers can generally only be tried for acts that violate the laws of war, such as unjustified attacks on civilians, espionage, or sabotage. (Treason is generally an exception to this, but the law of treason is only applicable to American citizens and residents, rather than to foreign soldiers.)

     This issue came up in the Lindh case, and is dealt with at length in Part III (starting with p. 14) of the opinion filed July 11. The broad legal discussion seems to me quite sound and informative, though I'm not completely sure that it's right in the specific details (especially its finding that no Taliban soldiers were eligible for lawful combatant immunity). And it also seems to be pretty accessible to laypeople. Well worth a read, if you're closely following the legal issues surrounding the war.

 
[Eugene Volokh, 12:17 PM]
MORE ON "A GOOD THING": Reader Bill Kirtley points out that "a good thing" is a jocular locution among computer programmers, though it seemingly began as a joke in a history parody published in 1930. The amusement value of the term was complex, had to do with intonation, and wasn't that great to begin with; but now that I've been reminded of this, I do remember this from my computer programming days.

     The problem, though, is that the joke worked largely because the locution was indeed unusual -- "it's a Good Thing" is funny (well, a little funny) precisely because it's odd to hear it said instead of "it's good." But these little jokes somehow find their way over time into serious speech, and, worse still, into writing; they lose their humorousness (such as it was) and become just more extra verbiage. Hate it when that happens.

 
[Eugene Volokh, 12:02 PM]
AUDEN: A serendipitous search brought me to The Wondering Minstrels site, and led me to read another beautiful work from Auden. I don't purport to make any broader point here, though it's impossible to quote this without making the obvious point: that which loses its vital spark dies, no matter its age or power. I just think it's a great poem, and want to share it:

The Fall of Rome

The piers are pummelled by the waves;
In a lonely field the rain
Lashes an abandoned train;
Outlaws fill the mountain caves.

Fantastic grow the evening gowns;
Agents of the Fisc pursue
Absconding tax-defaulters through
The sewers of provincial towns.

Private rites of magic send
The temple prostitutes to sleep;
All the literati keep
An imaginary friend.

Cerebrotonic Cato may
Extol the Ancient Disciplines,
But the muscle-bound Marines
Mutiny for food and pay.

Caesar's double-bed is warm
As an unimportant clerk
Writes I DO NOT LIKE MY WORK
On a pink official form.

Unendowed with wealth or pity,
Little birds with scarlet legs,
Sitting on their speckled eggs,
Eye each flu-infected city.

Altogether elsewhere, vast
Herds of reindeer move across
Miles and miles of golden moss,
Silently and very fast.

 
[Eugene Volokh, 8:47 AM]
THE LONG TERM: The reader who sent me the pessimistic message also closed with the following:

     Even though I think your reader is overblown with some of his concerns, there is no doubt in my mind that eventually the United States will become some sort of a totalitarian dictatorship. Perhaps not a cult of personality dictatorship. But definitely totalitarian.

     I don't think this will happen in my lifetime, or even the lifetime of my (purely hypothetical, at this point) children. But once the great grand-kids reach retirement age, all bets are off.

Look, I have no idea whether the reader is right. How can I? How can anyone? Damn it, Jim, I'm a law professor, not an astrologer.

     Thinking in the long term is surely a good thing -- but we have to understand the limits of long-term planning. Who in 1900 could have predicted the world of 2000? Who in 1800 could have predicted the world of 1900? We have very few examples of liberal democracies going totalitarian, but to my knowledge they involve either being overrun by an external enemy or a precipitating internal crisis (such as the Great Depression in the case of Nazi Germany). Now we will surely have external threats or internal crises in coming centuries, and it might be that one of them will push us into totalitarianism. But the nature of these threats and crises is that they're not business as usual, and that their circumstances and outcomes are impossible to predict.

     I hope that when I die, my children (also purely hypothetical at this point) will inherit a nation that's relatively safe, relatively free, and relatively prosperous -- and that my children's generation will have the best tools possible to ensure the same for their children. Thinking a generation or at most two ahead is probably good, though even that time frame is probably too long-term in some areas. But thinking 100 years ahead, and being pessimistic because of what one thinks will happen then, strikes me as a mistake. And if this pessimism saps our ability or willingness to plan as effectively as possible a generation ahead, then it's a costly mistake.

 
[Eugene Volokh, 8:46 AM]
MORE ON PESSIMISM: A reader writes -- in a message whose tone and thoughtfulness I much appreciate, though as you'll see I quite strongly disagree with it:

Your optimistic arguments are uplifting. I don't suppose you've listened to John Banzhaf on today's "Talk of the Nation?" If ever there was a cure for your optimism, here it is.

     I agree with your reader, even though I think he's overblown about some things. I'm most concerned about the types of arguments that are winning now. Witness Mr. Banzhaf. The anti-tobacco and anti-fast food arguments are totalitarianism pure and simple. Mr. Banzhaf's opening rehetoric is that he'd prefer legislation, but that hasn't worked, so he'll try litigation, never, I suppose, stopping to consider the possibility that legislation hasn't worked because people basically don't agree with him.

     Can there be a shred of a doubt that next lowest hanging fruit will succomb eventually? A multi-billion dollar corporation vs a 300lb 8 year old girl? Does personal choice stand a chance?

1. I generally strongly oppose the tobacco/gun/fast-food/alcohol/etc. tort lawsuits (the alcohol one hasn't been filed yet, but the case for such a lawsuit with regard to alcohol is surely much stronger than as to guns or fast food), but let's keep things clear: Nazi Germany and the Soviet Union were totalitarian. The U.S. during Prohibition, the U.S. during the War on Drugs, or the U.S. with tobacco and fast food heavily regulated and litigation-taxed was/is/will be not totalitarian. Whether or not these restrictions may restrain individual liberty, be wrong, and have all sorts of bad consequences, they aren't totalitarianism.



2. The trial lawyers won on tobacco, but so far, they seem to be losing on guns, and I highly doubt that they'll win on fast food. Among other things, there are lots of fast-food eating jurors who don't want their Big Macs to double in price. Maybe I'm wrong on this -- but I don't think so.

 
[Eugene Volokh, 2:33 PM]
WHY WE DON'T BLOG MUCH ON WEEKENDS: Check out the stats for InstaPundit, who does blog on weekends. (Our own stats would be less helpful here, precisely because we don't blog much on weekends, and our readers might well know that, and stay away precisely because of our relative silence.)

 
[Eugene Volokh, 10:49 AM]
MORE ON OPERATION TIPS: Faced with criticism from left and right, the Justice Department is scaling back its Operation TIPS proposal for encouraging the public to pass along evidence of activity that may be related to terrorism (source: FoxNews article):

"We are not going to target any company or industry that has workers that are going inside people's homes or working around people's homes," said one Justice official, who added that the DOJ is "absolutely discouraging" tips on activities from within people's homes. . . .
"They've scaled back Operation TIPS, but it is still an effort to enlist the private sector as government sanctioned peeping Toms," [Laura W. Murphy, director for the American Civil Liberties Union] said.

     Now I can certainly see how Operation TIPS and similar projects can be abused; and perhaps on balance withdrawing or scaling back TIPS is a good idea. But surely these quotes illustrate the logical weakness of the most common anti-TIPS argument.

     Imagine for a moment the following conversation:

     Citizen calling the FBI or the police department: "Hi -- I noticed something unusual when visiting someone's house, and while I can't be sure, I think it might be bombmaking equipment."

     FBI / police operator: "Sorry, sir, but we're absolutely discouraging tips on activities within people's homes."

     Citizen: "But I thought that I ought to report --"

     Operator: "Which part of 'absolutely discouraging tips on activities within people's homes' didn't you understand, you snitch? Peeping Tom! You should be ashamed of yourself. "

     I doubt that we really want to see conversations like that -- either about possible evidence of terrorism, or possible evidence that a neighbor is beating his wife, or sexually abusing his children. Yes, there are dangers with these sort of citizen tips; but on balance, I take it that we'd think that someone who alerts the police to what he thinks might be evidence of a crime is generally being a good citizen (especially if we agree that the possible crime really ought to be a crime). And this is so even if the evidence of wife-beating, child sexual abuse, or bombmaking was seen when the person was lawfully inside someone else's home.

     Now maybe the foes of TIPS don't really want such reports to be discouraged (though that's the word that the Justice official used, and though that's implied by Murphy's condemning tipsters as "peeping Toms"), but merely not explicitly encouraged; and perhaps this might ultimately be a sensible line -- accept citizen tips, but don't officially encourage them. But if alerting the police to what you think might be evidence of crime is generally good, I'm not sure why it's bad for the government to encourage such good behavior. At the very least, this sort of "don't discourage, don't encourage" proposal would have to be defended more clearly than it has been.

     (See also here, here, and here for more Volokh Conspiracy posts on this subject.)

 
[Eugene Volokh, 9:02 AM]
PERSECUTION: Quick summary of the University of North Carolina mandatory Islam-related-reading flap: The University of North Carolina is requiring students to read a book about Islam, which includes various excerpts from the Koran; that some students are suing, claiming that the requirement violates their religious freedom; and that the North Carolina legislature is trying to require UNC to cancel the assignment. I'm not sure who's right and who's wrong here, and I doubt that I could figure it out unless I actually read the required assignment, something that's not on the top of my to-do list.

     But I am pretty sure that the legislature's proposed action, proper or not, simply can't be called "persecution," which is what the usually very sharp William Saletan calls it in Slate. UNC, an arm of the state government, decided to impose a reading requirement. The legislature, which also speaks for the state government, is thinking about removing it. It might be a waste of the legislature's time; it may be foolish for the legislature to be interfering with educational policy decisions; I express no opinion on that. But it just isn't persecution of anyone -- not of the students, not of the teachers, not of Muslims generally.

     (I should mention, by the way, that I generally quite like Slate; I pick on it more than on other journals largely because I read it more than I read other journals.)

 
[Eugene Volokh, 5:30 AM]
"RIGHT-TO-BEAR-ARMS CROWD": There's another pretty unpleasant-sounding zero-tolerance incident in the news: A seemingly model high school student was expelled for a year for having a cooking knife in the back of his truck -- it apparently fell out when he was helping his grandmother move, but the school insists that their zero-tolerance policy mandates the expulsion; Joanne Jacobs links to a generally very good L.A. Times story about this.

     I actually think the zero-tolerance policy question is more complex than many people suggest it is; zero-tolerance policies yield errors that wouldn't happen if the school administrators had more discretion, but discretionary policies yield errors that wouldn't happen if the school administrators were governed by a zero-tolerance policy. Much depends on how much you trust the administrators' discretion, and what you think are the relative risks of the two errors. It might be that zero-tolerance policies have gone too far in some places, but I'm not sure one can tell this just by looking at the widely publicized problem cases.

     But that's not the focus of this post; I'll leave the zero-tolerance debate to others, such as Jacobs, who are more knowledgeable on education policy than I am. Rather, I was struck by the following quote in the L.A. Times story, which described some of the messages that the principal got after the story hit the news:

Other messages scared Short even more. The loudest voices came not from civil libertarians but from the antigovernment, right-to-bear-arms crowd. Free men are armed, slaves are disarmed. The Constitution guarantees the right of the people to bear arms . . . You're just a bunch of left-wing nazi indoctrinators . . . Take away the arms and you break a nation.

Hmm -- "right-to-bear-arms crowd." Do you suppose the L.A. Times would refer to James Madison as a "scar[y]," "antigovernment," "right-to-bear-arms crowd" guy? He did say in The Federalist that "the advantage of being armed, which the Americans possess over the people of almost every other nation" helps "form[] a barrier against the enterprises of [federal government] ambition"; "the governments [of Europe] are afraid to trust the people with arms," which keeps the European people from "be[ing] able to shake off their yokes."

     What about Justice Joseph Story, the leading constitutional commentator of the first half of the 1800s, who was a supporter of a strong federal government? He too must be part of that "scar[y]," "antigovernment," "right-to-bear-arms crowd," having written that "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." Not that far off from "free men are armed, slaves are disarmed" (and see the remarks of George Mason, who wrote that "to disarm the people" "was the best and most effectual way to enslave them"). Lots of other people would go into the same crowd, including, for instance, Hubert Humphrey.

     But wait, there's more in that crowd: I'm not sure, for instance, whether the L.A. Times reporter knows that 44 of the 50 states have a right to bear arms provision in their state constitution; that 15 of them have been created or strengthened since 1970; or that the most recent one, the Wisconsin right to bear arms provision, which was first created in 1998, was endorsed by a 74%-26% vote. Sounds like most of Wisconsin is part of that "crowd." And this -- together with Madison, Story, and Humphrey -- should further remind us that the "right-to-bear-arms crowd" is hardly inherently "antigovernment." One can believe that a strong government, including a strong federal government, is necessary, but also recognize that such a government's power should be checked by, among other things, the citizenry being armed.

     Now as it happens, I think that the arguments in the messages that the L.A. Times quotes are substantively mistaken. I don't think that the right to bear arms is particularly relevant here; that adults should have a right to bear arms in general doesn't mean that minors should have a right to possess guns or knives on school property. In my view, this case isn't about the right to bear arms but about the proper remedy for accidental violation of generally legitimate school rules.

     But this itself is telling, because the reporter didn't characterize these arguments as illogical, or unsound, or inapplicable here, as he well could have. For him, such a substantive response was apparently besides the point -- after all, once one concludes that the messages are "scary" (and note that none of them contained any personal threats, which unfortunately do sometimes come from extremist right to bear arms supporters, just as they sometimes come from extremists on many political issues), and that they come from an "antigovernment, right-to-bear-arms crowd," why would there even be a need for any substantive reaction?

     This sort of casual dismissal is in a way more troubling than even a direct attack. Tens of millions of people -- in fact, according to many polls, over half the population -- support the right to bear arms (though I stress again that I agree that the right is not applicable here). But I suspect that in a typical L.A. Times journalist's social circle, many fewer do, and those that do, generally keep quiet about it. These people's views and arguments thus become inaccessible, perhaps even incomprehensible, to many such journalists. Taking seriously those whose perspectives are alien to yours is hard work, and it's easy for even a good journalist to slip. And, sad to say, the result ends up being an ever-growing cultural divide between the big-city coastal media elites and the public about whom (and supposedly for whom) they write.

 
[Eugene Volokh, 6:44 PM]
MORE ON ALZHEIMER'S SUFFERERS AND GUNS: My friend Jim Lindgren, a lawprof who specializes, among other things, in probate and trust law, writes:

From hearing Heston read his statement on the radio, I assume that he is now competent, whatever disagreements I might have about the wisdom of his views. He can still set up trusts or durable powers of attorney that, as a practical matter, obviate the need for being declared legally incompetent by a court or having a conservatorship. Indeed, if Heston has legal counsel, they would almost certainly urge him to take appropriate steps to remove the need for court-declared incompetence or a conservatorship -- assuming things go smoothly.

It's good to have friends who know things! As I mentioned before, the likeliest way in which an Alzheimer's sufferer might be covered under the California gun restriction is if he is placed under a court-ordered conservatorship. If Heston can avoid a conservatorship, then even if he does end up having "full-blown Alzheimer's" (a big if, and something that I'm sure all of us would wish doesn't happen), he probably won't be covered by the law.

 
[Eugene Volokh, 5:30 PM]
BUSH AND THE SAUDIS: InstaPundit quotes a somewhat overwrought New York Post piece by Ralph Peters slamming Bush for "groveling to Saudi bigots" and "kissing Saudi feet" in response to the Rand Corporation analyst's anti-Saudi briefing.

     I know very little about the "are Saudis our friends?" controversy, and I know nothing about the Administration's true plans with regard to the Saudis. But I do know that "Diplomacy is the art of saying 'nice doggy' until you can find a stick" (sometimes credited to Will Rogers and sometimes to Wynn Catlin). So whatever the Bush Administration foreign policy team thinks about the Saudis, I doubt that we can figure it out -- or at this point, that we should be able to figure it out -- based on the Administration's public statements on the matter.

 
[Eugene Volokh, 5:18 PM]
AMENDMENTS: Unfortunately, the proposed constitutional amendments that people submitted this Spring (over 100 of them) are still sitting in one of my folders; I reacted to a few shortly after I got them, but while I've read most of the others, I haven't blogged anything about them.

     I do hope to get back to this in several weeks, and I feel bad that I haven't gotten to it yet, since the submitters put a good deal of thought into their proposals. But unfortunately there's been too much else happening with my day job, and I've regretfully had to put this on the back burner. My apologies, and I hope to be able to return to it soon.