Kopel’s Corner weblog, Jan.-Mar. 2008 archive

[David Kopel, March 31, 2008 at 11:33pm] Trackbacks

On March 18, I joined the lawyers for Dick Heller at the counsel table for oral argument in District of Columbia v. Heller. The counsel table has four seats, and there were three lawyers representing Mr. Heller, so Alan Gura, the lead lawyer in the case, invited me to sit with them at the counsel table.

The practical function of the lawyers who are not presenting the oral argument is to write notes for the arguing lawyer, in case a tangential issue comes up. During the presentations by Walter Dellinger (for D.C.) and Paul Clement (for the Solicitor General) Justice Stevens asked questions which pointed out that of the Founding Era state constitutions, only two (Pennsylvania and Vermont) specifically mentioned self-defense as one of the purposes for the right to arms. So I gave Gura a note pointing out that courts in Massachusetts and North Carolina had interpreted their state constitution “for the common defence” language as an encompassing a right to arms for legitimate purposes, including defense against criminals. During Gura’s presentation, Justice Stevens raised the point again, and Gura began to detail the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.

After oral argument in any case, it’s always possible to think about how a particular answer could have been given better; but I think that Alan Gura did an excellent job. He was solid, well-informed, and persuasive.

Some observations from a first-timer in the Supreme Court:

The counsel table is quite near the bench. It’s an interesting experience to see the Justices up close and personal, after having spent so many months trying to discern their modes of thought.

It is indeed awe-inspiring to hear the Marshal of the Court announce: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

Before the argument, Walter Dellinger, a true Southern gentleman, came over to shake our hands. He graciously told Gura that Gura would do “great,” and said that his own very first oral argument had been his best.

Also awe-inspiring are the Court’s chambers, with a beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical characters personifying law-related virtues such as wisdom.

Based on the oral argument, it is possible to identify a few of the amicus briefs that were particularly influential. As Respondent, Gura would have been foolhardy to argue that the Court’s leading precedent, United States v. Millerneeded to be altered in any respect. That argument was instead in Nelson Lund’s excellent brief for the Second Amendment Foundation, and was apparently adopted by Justice Kennedy.

Justice Kennedy’s view that the militia clause of the Second Amendment emphasizes the importance of the militia, but does not limit the rights clause was supported not only by Gura’s brief, but also by a careful textual analysis in the Lund brief, and by a strong historical presentation in the Academics for the Second Amendment brief, written by David Hardy and Joseph Olson.

Gura was asked at one point if there was any contemporaneous evidence indicating that self-defense was a purpose of the Second Amendment. He began by pointing to the 1787 Dissent from the Pennsylvania ratifying convention, which had urged that the proposed U.S. Constitution be amended to state: “That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.”

Justice Souter retorted that the Pennsylvania Dissent was only concerned about the militia. Given the text of what the Pennsylvanians said, I find this view implausible; the better argument on D.C.’s side (made by, among others, Dennis Henigan of the Brady Center) seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have copied Pennsylvania’s language, but he chose not to.

Nevertheless, Justice Souter seemed to have been persuaded by arguments in a historians’ brief by Carl Bogus, which cited the law review scholarship about Pennsylvania by Nathan Kozuskanich. Kozuskanich was also cited in D.C.’s briefs, and in several of D.C.’s amicus briefs.

Michael Bane’s Down Range TV has a collection of various lawyers, academics, and other Second Amendment advocates, discussing the oral argument. He also has a link to the oral argument audio. C-Span’s Real Video coverage of the press conference after the brief (about 21 minutes, equally divided between the two sides) is here. A 15 minute podcast in which I’m interviewed about the oral argument is here.

For over a quarter-century, pro-Second Amendment lawyers such as Stephen Halbrook, Bob Dowlut, Don Kates, and David Hardy had dedicated their careers to making March 18, 2008, possible. Moreover, without the work of millions of pro-Second Amendment activists over the years, there would have been no chance of victory, however persuasive the evidence of original meaning might be. If the gun prohibition lobby had succeeded in its plans to use the 1976 D.C. ban to pass handgun bans in many cities and several states, it is doubtful that the Supreme Court would have the institutional will to strike down so many laws. And it also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional.

Yet while the work of millions of citizens made March 18 possible, it was Alan Gura who had to finish the job alone. Our young Skywalker performed magnificently, and I hope that by the Fourth of July, the law-abiding citizens of our nation’s capital will once again enjoy their rights to own handguns, and to use firearms in defense of their homes and families. 67 Comments  

[David Kopel, March 22, 2008 at 10:04am] Trackbacks

1. Election Results. The Nationalist Party (Kuomintang, KMT) presidential candidate Ma Ying-Jeou won a landslide victory today, defeating the Democratic Progressive Party candidate Frank Hsieh by 17% (58.5% to 41.5%). Ma won about 7.6 million votes, compared to 5.4 million for Hsieh. The results exceed even the election-eve expectations of the KMT, which was hoping that its internal polls showing a victory margin of about 11-13% would hold up.

Compared to the 2004 election (in which the DPP’s margin of victory was only 0.22%), the KMT improved its performance in every Taiwan county by 7-10%, and won 20 of the 25 counties. (The only county where the KMT did not improve dramatically was Kinmen County, which consists of some small islands very near to China; a large percentage of the population of Kinmen County is military and their families, and the military has historically favored the KMT. The KMT got about 95% in Kinmen in both 2008 and 2008.) The only counties with the DPP won were a cluster in southwest Taiwan, the party’s heartland.

The KMT and DPP positions on domestic policy were not greatly different, but the DPP nevertheless suffered from voter unrest about lower economic growth rates in recent years, in comparison to the rapid economic growth of not long ago. The parties have significant differences on international relations, particularly on how to deal with China, but both Ma and Hsieh are moderates within their parties. For further analysis of the policy implications of the election results, tune in next to a webcast of a TV program in which I interviewed a pair of Taiwanese political scientists. (Details later.)

The DPP also performed very poorly in the January elections for the legislature (Legislative Yuan), in part because a group of 11 DPP incumbents were defeated in primaries by hard-liners who could not carry swing districts. Nevertheless, because Hsieh is a moderate, there is a significant possibility that DPP’s remaining moderates may be driven from leadership roles.

President-elect Ma will take office on May 20.

A pair of initiatives were also on the ballot, regarding Taiwan’s membership in the UN. A DPP referendum asked if Taiwan should apply to join the UN under the name of “Taiwan.” A KMT counter-initiative asked if Taiwan should apply to “rejoin” the UN under the name of “Republic of China” or “any other convenient name.” Both initiatives received an overwhelming majority of votes cast, but neither passed, because the law states that no initiative will be valid unless 50% of eligible voters (not actual voters) vote on the initiative.

2. Election Process. The voting and vote-counting were a model of integrity, transparency, and efficiency. I observed voting at three north-central Taipei precincts: at St. John Bosco Catholic Church, and at a pair of precincts voting at National Taipei University.

Throughout Taiwan, voting was by paper ballot, with marked ballots placed into sealed ballot boxes. Photography during the voting process is forbidden, but is allowed while the ballot are being counted.

When the ballot box is opened, and vote-counting begins, each ballot is held up one-by-one, and the vote is announced. The vote-counting is open to the public, and is observed by party representatives, as well as other interested citizens.

Each vote is recorded on a tally sheet which is also visible. Each small box on the tally sheet holds a total of five votes, which are recorded one at time with hashmarks. The completed five-strokes of the hashmark form a Mandarin character which means “correct” or “upright.”

After the last ballot is tallied, the empty ballot box is displayed for all to see.

The results are transmitted to a district election office, and then the district results are sent to the Central Election Commission, where results are displayed as fast as they are recorded.

The Central Election Commission’s work (which was conducted in an auditorium at the National Police Academy) is open for everyone to watch, with the data processors located at the front of the room.

Between the time when we left our precinct after the votes were counted, and when we arrived at the Central Election Commission, about half an hour had elapsed. By then, the CEC was already displaying over half of the votes cast nationwide.

In a typical American general election, which may have dozens of races and issue votes, it would be very difficult to achieve such speedy results with hand-counting. Even so, the transparency of the Taiwan process inspires confidence and helps assure legitimacy.

As in any election, there are plenty of people who are disappointed with the result, and no one should minimize the difficulty of the challenge that President Ma will face in ensuring that when he leaves office in 2012 or 2016, Taiwan’s freedom and sovereignty have not been eroded by its aggressive neighbor. But for now, all the people of Taiwan should be proud of their beautiful island of freedom, and their successful exercise of the inherent right of the sovereign people to chose their government. 0 Comments

[David Kopel, March 21, 2008 at 12:24pm] Trackbacks

In about seven hours, the polls will open for Taiwan’s presidential election. Incumbent President Chen Shui-Bian is term-limited, so the race is between Frank Hsieh, of the Democratic Progressive Party (the same party as Chen), and Ma Ying-Jeou, of the Kuomintang (Nationalist Party). The public release of polling information is forbidden in the days before the election, but many observers believe that Hsieh is rapidly closing a large gap in the polls.

An important factor working in Hsieh’s favor is the rioting in Tibet, a reminder of China’s brutal suppression of a formerly independent nation; although the Chinese government has renamed Tibet as the “Tibet Autonomous Region,” Chinese treatment of the Tibetans ever since the Chinese conquest half a century ago serves as a reminder that the Chinese government’s promises of autonomy are sometimes worthless.

Mr. Ma, the former mayor of Taiwan’s capital city, Taipei, has proposed forming a common market with China, and his party, the KMT, is generally seen as more conciliatory to China than is the DPP. (However, DPP candidate Hsieh is seen as much less inclined than President Chen to push the envelope on China issues.)

As a result, Ma has made a point of taking a tough line on the Tibet issue. He contrasted Taiwan and Tibet by stating that unlike Tibet, Taiwan is “sovereign”–an indisputably accurate fact, although one with many appeasement-minded KMT members have been reluctant to say out loud. Further, he said that if Chinese government violence in Tibet continues, Taiwan might boycott the Beijing Olympics.

Over 200,000 Taiwan citizens living overseas have come home to vote in the election. The majority of these traveling voters are Taiwanese entrepreneurs and their families who live in China. One elderly man traveled 20 hours from Brazil to be able to vote.

The Taiwanese are very enthusiastic participants in their democracy, and, happily, the electorate seems less polarized than in the bitterly-contested 2004 election.

By Taiwanese law, all public rallies must end by 10 p.m. on the night before the election. A little bit ago, I attended the KMT’s final pre-election rally in Taipei. Neither presidential candidate Ma Ying-Jeou nor his running mate Vincent Siew were at the rally, since both spent the day in campaigning in southern Taiwan. Below are some pictures from the rally. I didn’t arrive in Taipei in time to attend the DPP’s big rally there two nights ago; I wish I had, so that I could also post DPP photos.

VC readers will be pleased to know that both Hsieh and Ma have law degrees, and that Ma earned a LLM from Harvard.

These photos are taken from near the front of the rally; they don’t convey the size of the crowd, which was huge, or the sounds of the loud and enthusiastic crowd.

The woman in the middle of the above picture (to the left of the man in the lavender shirt) had flown in from Los Angeles to vote.

The KMT is the leading party of the pan-blue coalition; while the DPP leads the pan-green coalition. Hence the DPP’s campaign symbol of a bluebird. The flags, of course, are those of Republic of China, which is Taiwan’s formal name.

Siew is on the left, Ma on the right. 46 Comments

 [David Kopel, March 16, 2008 at 3:06pm] Trackbacks

Polls on handgun bans

The Sunday Washington Posthas an interesting collection of articles previewing Tuesday’s oral argument in District of Columbia v. Heller, regarding whether DC’s handgun ban and ban on home self-defense with any gun violate the Second Amendment. Among the articles is a poll on American attitudes towards gun ownership and the Second Amendment.

In the WaPo poll, 72% of respondents said that they considered the Second Amendment to be an individual right, not just for militia only. The is essentially identical to the most recent Gallup Poll (conducted Feb. 8-10, 2008) in which 73% of respondents said that the Second Amendment was an individual right, not limited only to militia.

The WaPo poll also asked “Would you support or oppose a law in your state that bans private handgun ownership and requires that rifles and shotguns kept in private homes be unloaded or have a trigger lock?” 59% said yes.

This is a surprising result, since it is strongly contrary other polling results. In the Gallup Poll, for example, you have to go back to 1965 to get plurality support for a handgun ban, and back to 1959 to find support comparable to the level report by WaPo.

Here’s the Gallup question, and the results. “Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?”

2007. Oct 4-7. 30% should. 68% should not. 2% undecided.
2006. 32/66/2.
2005. 35/64/1.
2004. 36/63/1.
2003. 32/67/1.
2002. 32/65/3.
2000. 36/62/2.
1999. April. 38/59/3.
1999. Feb. 34/64/2.
1993. Dec. 39/60/1.
1993. March. 42/54/4.
1991. 43/53/4.
1990. 41/55/4.
1988. 37/59/4.
1987. 42/50/8.
1981. June. 41/54/5.
1981. April. 39/58/3.
1980. Dec. 38/51/11.
1980. Jan. 31/65/4.
1975. 41/55/4.
1965. 49/44/7.
1959. 60/36/4.

CBS/New York Times polls have asked “Would you favor or oppose a ban on the sale of all handguns, except those that are issued to law enforcement officers?” The CBS/NYT results are:

April 2007. 33% in favor. 64% opposed.
2000. 34/63.
1999. 43/53.
1994. 46/50.
1989. 40/55.
1981. 43/51.

I don’t know why the WaPo results are so different from the others. Perhaps there was some effect from WaPo asking a compound question.

BTW, the issue in Heller is not the trigger lock requirement per se. It’s that the there is no exception allowing the gun to be unlocked in a self-defense emergency; in the 1977 case of McIntosh v. Washington, the D.C. Court of Appeals upheld the home self-defense ban against challenges that it violated equal protection and the common law right of self-defense. The McIntosh court agreed with D.C’s lawyers and recognized the statute as an absolute ban on home self-defense with any firearm; this was held to be rational because of the number of fatal gun accidents was (according to the McIntosh court) larger than the number justiable self-defense homicides with guns.

UPDATE: A reader has supplied some graphs of the trends in the NY Times and Gallup polls. If they’re too small for you to read comfortably, click on the graph, and you’ll get a bigger version.


[David Kopel, March 15, 2008 at 2:21am] Trackbacks

American Constitution Society panel on DC v. Heller

Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel’s office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available here. 12 Comments

[David Kopel, March 9, 2008 at 5:18pm] Trackbacks

In the Supreme Court’s Second Amendment case District of Columbia v. Heller, DC and its amici frequently cited a then-forthcoming Rutgers L. Rev. article by Nipissing University assistant history professor Nathan Kozuskanich, a protégé of Saul Cornell. DC’s reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.

A pair of new postings by Clayton Cramer analyze the J. Constl. L. article, and the Rutgers article. To call the articles “law office history” might be unfair to law offices.

Regarding the J. Const. L.article, Cramer explains how Kozuskanich’s theory (that the right to arms in early Pennsylvania was only for collective defense of the state) depends on ignoring other evidence, and on strained, implausible readings of the evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of Dr. James Reynolds for “assault with intent to commit murder.” Kozuskanich claims that the prosecution proves that Pennsylvania’s constitutional right to arms did not apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with a crime for his mere carrying of the pistol; he was charged with a crime because he pointed the pistol and threatened to shoot someone. The book American State Trialsobserves that Reynolds “contented himself with carrying a pistol. And in this he was justified by every law, human and divine.” Certainly no-one at the trial contended otherwise; so Kozuskanich’s claim that the prosecution for attempted homicide proves that there was no individual right to own and carry guns is implausible.

The prosecution’s theory of the case was that Dr. Reynolds, who was in a public place, could have safely retreated from threatening mob, and that Blackstone’s standards for self-defense require such retreat. The jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of the split between the more restrictive British standards of self-defense, and the new, more liberal American standards. That conflict on self-defense standards continues to the present day. But arguments about the boundaries of self-defense (such as whether there is a duty to retreat if possible) certainly do not disprove the existence of a constitutional right of individuals to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in an article in the Georgetown Journal of Law and Public Policyoffer numerous examples of Founding Era usage of “bear arms” to mean carrying guns in a non-military setting. Tellingly, Kozuskanich simply ignores the Olson/Cramer evidence, for that evidence demolishes Kozuskanich’s theory.

Cramer’s critique of the Rutgers article observes that Kozuskanich actually cites Michael Bellesiles, who was forced to resign from Emory after the proof (brought forward by Clayton Cramer, James Lindgren, and others) that Bellesiles had falsified his data, including his data on the very point for which Kozuskanich cites him (the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776 guaranteed “That the people have a right to bear arms for the defence of themselves and the state.” The opening language, “That the people have a right”, was identical to Articles X, XII, and XVI, which guaranteed the individual rights to freedom from unreasonable search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania Convention’s debates on Article VIII of the Constitution–affirming that everyone is bound to serve in the militia, or pay “an equivalent thereto” (that is, a fee whereby conscientious objectors could be excused from serving personally). Kozuskanich claims that the Article VIII debates prove that there was no individual right to arms for self-defense. As Cramer notes, this is silly. The Article VIII debates were not, of course, about an individual right, which was the subject of a separate article; the Article VIII debates involved the scope of a duty.

Kozuskanich’s approach to Pennsylvania is similar to the approach that his mentor, Prof. Cornell, uses for St. George Tucker (the leading constitutional scholar of the Early Republic): quote Tucker’s words about congressional militia powers arising from Article I of the federal Constitution, and claim that those words prove that the Second Amendment does not involve arms for personal defense. (For more on this latter point, see Stephen Halbrook’s article in the Tenn. J. L. & Pol.24 Comments

[David Kopel, March 4, 2008 at 10:07pm] Trackbacks

Last May, after the D.C. Circuit Court of Appeals ruled in District of Columbia v. Heller that the D.C. handgun ban violates the Second Amendment, Harvard Law School Professor Larry Tribe was contacted, and asked if he would like to write an amicus brief in support of Heller. Tribe wrote back to Heller’s attorneys that he did not want to do an amicus brief, but he would be interested in exploring his playing a “more central role” in the case. Tribe urged that he could be effective with the center and left-of-center Justices.

The only “more central role” than that of amicus-writer is that of co-counsel for Respondent. And, obviously, the only position of a counsel for Respondent would be in favor of affirmance of the favorable judgment below. Of course a counsel might offer a different theory for why the decision should be affirmed.

Today in the Wall Street Journal, Professor Tribe penned an op-ed urging that the decision of the Court of Appeals be reversed; he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes “any plausible standard of review.”

Professor Tribe has the right to change his mind, but the air of forceful certainty with which he today argues for reversal seems inconsistent with his unrequited offer from ten months ago to play a “more central role” in securing affirmance. 41 Comments

[David Kopel, February 29, 2008 at 1:26pm] Trackbacks

McCain’s birth, Russian language version

In this Russian-language radio broadcast for Radio Free Europe/Radio Liberty, I add my own thoughts to the controversy. Synopsis: the issue hasn’t been clearly settled by the courts, but most legal scholarship supports McCain’s eligibility. His eligibility is strongly supported by the fact that he was born on American soil, since he was born in the Canal Zone. The clause was intended to prevent dual loyalty, which is not an issue in McCain’s case, since he was an American citizen at the moment of his birth, and he was never a citizen of Panama or any other nation. Thus, this is an easier case than someone who was born on foreign soil, and who received foreign citizenship as a result of that birth. (E.g., a child born to American private-sector workers who were living in Ireland at the time of the birth; although I argue that even in this case, most legal scholarship would favor that child being considered “a natural-born citizen.”)

Related Posts (on one page):

  1. “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty”:
  2. McCain’s birth, Russian language version:
  3. The meaning of “natural born.”
  4. “Natural-Born Citizen”:


[David Kopel, February 27, 2008 at 2:14pm] Trackbacks

The legal availability of handguns makes for a better-prepared police force and a safer citizenry

Ed Nowicki (head of the International Law Enforcement Educators and Trainers Association) and I explain why in an op-ed in today’s Baltimore Sun. The Nowicki-Kopel amicus brief is here.10 Comments

[David Kopel, February 25, 2008 at 9:29pm] Trackbacks

Palestinians as “the most oppressed people on Earth”

I’ve seen various Internet sites claiming that in Iowa, Senator Obama called Palestinians “the most oppressed people on Earth.” Can commenters supply information about an original source (rather than a third-hand Internet claim) about whether Senator Obama really said this? Even if one accepts the theory that Israel is entirely responsible for Palestinian “oppression,” and that the Palestinians (unlike, for example, the East Germans in 1946) bear no responsibility for their current situation, it seems preposterous for anyone to believe that Palestinians are more oppressed than, say, Darfuris or North Koreans. Accordingly, I hope that the quote is just an unfounded Internet rumor.

Update: Impressively fast reader comments explain that Obama never said such a thing; the “quote” is a very garbled version of something he did say, and which is a very mainstream observation.

Further update: I participate in the ListServ of the National Council of Editorial Writers. One of the main purposes of the ListServ is to provide information about astroturf letters to the editor, or about other LTE issues. I sent a memo to the ListServ explaining that the purported Obama quote is fake; thanks to VC commenters for helping to expose the truth about the false quote. 32 Comments

[David Kopel, February 23, 2008 at 6:29pm] Trackbacks

Media miscoverage of the role of man-made chemicals in disrupting human or animal reproduction

That’s the topic of my media column in today’s Rocky Mountain News. The column also expresses skepticism about the benefits of Gannett buying Colorado’s leading college newspaper, about media coverage of Obama and Clinton, and about Maureen Dowd.9 Comments

[David Kopel, February 23, 2008 at 1:19am] Trackbacks

Geographical Gun Control Research Project

David Bernstein recently noted Illinois State Senator Barack Obama’s 1999 proposal for a federal law against licensed firearms dealers operating within five miles of a school or park. Every town I’ve ever visited which has more than a few dozen inhabitants has either a school or a park. Hypothesizing that the ban would apply to city parks (e.g., Central Park in New York City) but not to National Parks, pick a geographical region, and describe where a licensed firearms dealer could operate. Or pick a geographic point (e.g, Houston) and identify how far a person would have to drive in order to get to the closest point where a gun store could legally be located. Extra credit for illustrative maps. 43 Comments

[David Kopel, February 22, 2008 at 1:28am] Trackbacks

Podcast on Framing Brief in DC v. Heller:

At, I interview Hamline law professor Joe Olson for 44 minutes about the Academics for the Second Amendment brief he co-authored in District of Columbia v. Heller. The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others. The podcast is available in MP3 or streaming format.8 Comments

[David Kopel, February 19, 2008 at 5:58pm] Trackbacks

The Human Right of Self-Defense

The final, published version of this article from the BYU Journal of Public Law is now available. The article, which I co-authored with Paul Gallant and Joanne Eisen, argues that personal self-defense is recognized as a universal human right, and is the foundation of international law. The article critiques a report by University of Minnesota Law Professor Barbara Frey, written for the UN Human Rights Commission/Council, which contends that self-defense is not a right, but is instead, at most, an excuse similar to duress or insanity. 31 Comments

[David Kopel, February 20, 2008 at 12:59am] Trackbacks

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:

That’s the title of a Working Paper that I’ve co-authored with Howard Nemerov. Abstract:

There are 59 nations for which data about per capita gun ownership are available. This Working Paper examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.

Comments are welcome–particularly by commenters who read the article, rather than wasting time on troll battles on other issues.


[David Kopel, February 18, 2008 at 8:03pm] Trackbacks

Late last year, I wrote about the case of Samuel Golubchuk, an elderly Canadian man whom his doctors wish to euthanize, over the strong objections of his orthodox Jewish family. (Hastening someone’s death by withdrawing life support is known as “non-aggressive euthanasia.”) A recent policy statement from the College of Physicians and Surgeons of Manitoba, asserts the power and the duty of physicians to euthanize patients, notwithstanding the objections of the patient or his family. Last week, a Winnipeg trial court issued an injunction requiring continued care for Mr. Golubchuk, pending a full trial on the merits.

According to the decision, Golubchuk’s relatives

have produced an affidavit of a neurologist who practises in New York and has reviewed the entire hospital record of Grace Hospital. He has noted an absence of any examination of the plaintiff by a neurologist, any brain-imaging such as with CT scan or MRI, or other measurement of brain activity. He stated that the record contains many references to the plaintiff being awake and making purposeful movements that have not been reported by or explained by the defendants’ deponents. He stated that the plaintiff has not been assessed for aphasia, locked-in syndrome or other treatable neurological illnesses, which could account for his apparent lack of consciousness. He concluded on that point:
11. Furthermore, according to the documentation in the medical records, Mr. Golubchuk’s condition has demonstrably improved (Exhibit “D”). There is no evidence whatsoever that he is brain dead, close to brain dead, or dying, from a neurological point of view. He has enough higher cognitive function to not only be considered awake but to make frequent, purposeful movements and engage in other purposeful activities.

The court rejected the hospital’s claim that settled law allowed a physician to terminate life-sustaining treatment over the objections of a patient or family. Further, wrote the court, it was possible that Golubchuk had a right to treatment under the Canadian Charter of Rights and Freedoms, or the common law. In light of the balance of equities (that Golubchuk would suffer an irreparable injury, namely death, without an injunction), the court enjoined the hospital from euthanising Golubchuk pending trial on the merits.

I was surprised to find that the name of the hospital that wants to euthanise Golubchuk is the Salvation Army Grace General Hospital, which according to its website, is a “faith-based” facility.



A new article in the Cato Journal, by Robert Krol, examines various strategies for limiting government spending growth. He finds several methods to have proven success: Tax and Expenditure Limits (such as those in Colorado’s Taxpayer Bill of Rights), balanced budget requirements (a long-standing requirement in Colorado), and citizen initiatives (part of the Colorado Constitution since the early 20th century). In contrast, two methods have been shown not to work: Rainy Day Funds (which are often used to avoid tax and spend limitations), and term limits (which are actually associated with higher spending; legislative, but not gubernatorial, term limits are associated with lower taxation).

[David Kopel,February 18, 2008 at 6:42pm]Trackbacks

Web design bleg

I manage website A with MS Frontpage 2003. On one of the pages on site A, I would like to include the most-recent contents of an RSS feed from site B (which is a Typepad weblog). How do I accomplish this? 10 Comments

 [David Kopel,February 18, 2008 at 6:18pm]Trackbacks

Rob Natelson, the Spending Power, and Fiduciary Duty:

A recent article in the Texas Review of Law and Politics, by my Independence Institute colleague Rob Natelson (who is also a constitutional law professor at the University of Montana) applies some cultural context to the original meaning of the spending clause.

At the time of the Founding, the legal principles of “fiduciaries,” “servants,” or “agents” were well-known. A fiduciary/servant/agent was expected to act impartially, not for his own self-interest, on behalf of the principals. For example, if a person were the trustee of an estate for three children, the trustee would be required to give each of the children equal earnings from the trust. (Unless there were a good reason not to. i.e., the one child was independently wealthy from other income; one child had made an improvident marriage).

Natelson argues that the fiduciary principles are incorporated into the Constitution, and provide the basis for “rational basis with bite” review of congressional spending. (That is, until the 1936 Butler case is over-ruled, and Congress is again required only to spend in furtherance of enumerated powers, rather being allowed to spend for anything it chooses.)

For example, Congress spends money to establish a National Institute of Obesity Research in Mississippi. The spending will provide a much greater financial benefit to Mississippi than to any other state, but the purpose of the NIOR is clearly to benefit the entire nation, by improving everyone’s health. This spending passes the rational basis with bite test.

In contrast, consider the earmark which former Senator Conrad Burns created, in order to provide funds for capital construction at the University of Montana Law School. This would appear to be special-interest spending for the benefit of a single state, not for the nation as a whole. Such spending would fail the rational basis with bite test. If, perhaps, Congress made a finding that some states were chronically underlawyered, and provided capital construction grants for expanded law school facilities in all such states, then the spending might pass the Natelson test. (The above examples are my own, not Natelson’s, although he does cite the Montana earmark as an example of pork.) 2 Comments

[David Kopel,February 18, 2008 at 3:13pm]Trackbacks

David Young on the pro-DC Historians Brief in DC v. Heller

Published today on History News Network, an article by David Young which critiques an amicus brief filed by 15 history/law professors, arguing against the standard model of the Second Amendment. If you would like a copy of the article with citations, just go to Young’s website, and e-mail him a request. If you are interested in studying the original documents about the Second Amendment from the Founding Era, Young’s book The Origin of the Second Amendment is an outstanding, and amazingly thorough resource. 13 Comments

[David Kopel,February 18, 2008 at 2:40pm]Trackbacks

Originalist Analysis of George Washington and Establishment of Religion:

The Texas Review of Law and Politics has a review of the new book by co-authored by my Independence Institute colleague Joseph C. Smith, Under God: George Washington and the Question of Church and State. The book examines Washington’s views and practices on issues of related to government support of religion. The book concludes that Washington was far less concerned about separation of church and state than were Jefferson and Madison, and that Washington’s views deserve greater consideration from modern courts than they have received. 25 Comments

[David Kopel,February 14, 2008 at 5:04pm]Trackbacks

Best Pro-Hillary Video Ever

A short video statement from a friend of mine, whose family lived, and still lives, one block from the World Trade Center. She describes Senator Clinton’s role in asking the tough questions about air quality near the WTC in the weeks and months after the attack. The video is a powerful, personal, and credible testimonial to the best side of the detail-oriented Senator Clinton. 59 Comments

[David Kopel,February 13, 2008 at 3:15pm]Trackbacks

Audio/video on the Amicus briefs in DC v. Heller

Heritage Foundation event last Thursday, Senators Kay Bailey Hutchinson (R-Texas) and Jon Tester (D-Montana) discuss their congressional amicus brief in D.C. v. Heller. Independence Institute podcast, in which I discuss the law enforcement amicus brief I wrote. Tonight on NRA News, at 11:20 Eastern Time, I will be interviewed about the brief. (The broadcast is available on Sirius 144, and on the Internet, and is available by podcast for the day after the program.) 4 Comments

[David Kopel,February 13, 2008 at 2:40pm]Trackbacks

The Fifth Circuit Ban on Sex Devices:

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power–and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

Related Posts (on one page):

  1. The Fifth Circuit Ban on Sex Devices:
  2. Dildoes Going to the Supreme Court?

96 Comments[David Kopel,February 13, 2008 at 2:18pm]Trackbacks

A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC’s theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC’s argument is contrary to the constitutional plan for federal militia supremacy.

Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.

No brief filed by Petitioner or its amici addresses these issues.

Below the fold: Maryland Governor Herbert O’Connor’s March 10, 1942 radio address, asking for volunteers from, inter alia, the “membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen’s groups of every type” to help defend Maryland against potential German incursions, such as saboteurs. “[T]he volunteers, for the most part, will be expected to furnish their own weapons….The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity.”

Archives of Maryland Online, Volume 409, Page 616
State Papers and Addresses of Governor Herbert L. O’Conor
March 10, 1942

THE sincere hope of every person in Maryland is that our State may never experience invasion or attack. That we should consider such a thing as possible is in itself a terrible shock to the American state of mind. Nevertheless, with so much of the world overrun by the enemies of Democracy, and with the invasion of Java and New Guinea as well as other points in the Australian Archipelago fresh in our minds, we would be foolish, indeed, not to be prepared, as completely as possible, for any such happening, even here in Maryland.

Our people didn’t want this war and, prior to the dastardly and cowardly attack on Pearl Harbor, the thought of sending American troops to fight in far-away lands was abhorrent to the minds of every American. Recent developments of the most threatening nature, however, have completely changed America’s attitude toward the present conflict. The unexpected and continuing success of the Japanese forces, who have swept everything before them except General MacArthur’s heroic band in the Philippines, have impressed on our minds most forcibly that new tactics are demanded.

That is why, in the recent past, there has become evident a tremendous demand on the part of Americans everywhere, that our leaders forsake a defensive policy and pursue this war in typical American fashion by carrying the offensive to the enemy at every possible point.

But this plan, if adopted, will make necessary additional protective forces in the states of our Country, particularly those like Maryland, situated along the coastlines. It is about this matter of necessity that I desire to speak to the people of Maryland tonight.

Let us review briefly the various steps, and then consider why and to what extent Maryland confronted with danger and what we must do at once to protect our citizens. The Federal Government faces the tremendous task of training the largest military and naval establishment in our Nation’s history. After the hundreds of thousands, and even millions, of our men are trained and equipped, they must be transported, far and wide, over the seven seas to overcome the enemy outside continental United States. Every available man in the combat forces will be needed in this far-flung offensive. This means that if any number of soldiers, trained for military operations, would be retained within the United States for guard duty, or for any other routine defense purpose, that would entail a loss to our Country’s striking power.

The Federal Government, of course, is the one which assumes the responsibility for the conduct of war. But the State Government has its obligation, also, to its citizens. That obligation includes protection to our people. It was for this reason that more than a year ago I asked the Maryland General Assembly to authorize the creation of the State Guard, the primary purpose of which was to have a mobile protective force ready to move in any direction to maintain the safety and security of our people and their property. It is with pleasure that I can report to our people that the State Guard is completely drilling.

The State Guard numbers approximately 2, 700 officers and men. Supplementing it is a Special Military Police Force, the members of which are on continuous duty and assigned exclusively to the guarding of our State’s bridges, important water supplies, and other vital points, described by the War Department as having important bearing on the war effort. The number of this force is approximately 300.

To the credit of the members of our present Guard, it can be said that they have responded to every requirement since our Nation entered the war, despite unexpected difficulties under which they have at times been required to perform their duties. The public will understand that up until now the State’s defensive efforts have consisted mainly in protecting those installations and locations which the War Department consider as vitally important.

Now, however, a greater possible danger must be faced by our people. Situated as we are and exposed as our State is, we must be prepared for the worst. Since the outbreak of hostilities at Pearl Harbor, I have been in touch, at regular intervals, with United States officials who have imparted information revealing the danger that besets us. I owe it to the people of the State to report that we are in jeopardy, and that we must be prepared for trouble both from without and from within our State.

Only today, for instance, have I been advised by the Commanding General of the First Army, in New York, that the presence and increasing activity of enemy submarines off the Maryland Coast require additional drastic measures.

With the prospect that the regular Army units will be engaged in more important operations elsewhere, and with our State Guard and Military Police assigned to particular functions, it is felt absolutely necessary to have an additional protective force-: as a home guard-for the protection of our various communities. Competent military officers, one of whom, our capable and experienced Major General Milton A. Reckord, will speak to you in a few minutes, advise that there is need of this further, wide-spread, alert defense organization to cope with and to be available instantly for any sudden attack by parachute troops, by forces landed from the sea by enemy sympathizers within our State.

I propose to meet this need by the organization in every part of the State of a Reserve Militia. The completed plan has just been approved by General Reckord, as Commander of the Third Army Corps. It offers the opportunity for every able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the “Maryland Minute Men.”

The mission of the Maryland Minute Men is to furnish immediately, local protection against parachute troops, saboteurs, or organized raiding parties. It is planned that the units be confined to their own communities so that there will be assurance at all times that every residential section of Maryland will have protection.

No prescribed complete uniform will be required. Distinctive arm bands and caps or other items may be furnished by the State, the County, or by the men themselves. For the present the hard-pressed Ordinance Department of the United States Army cannot be expected to furnish sufficient arms, ammunition, or equipment. Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60, 000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations, will be expected to constitute a part of this new military organization.

Officers will be drawn from the immediate area in which they are to serve. As Army officers have pointed out to me, the familiarity of the members with their particular locality, with the terrain and road not in the respective communities, will be of great value in resisting any hostile efforts against residential areas and important public necessities.

No intensive training program will be adopted. While sufficient preparatory work must be undertaken by the Minute Men, care will be taken to avoid unnecessary demands upon their time. No guard duty is to be included as a regular part of the program for the new force.

Retired officers of the regular Army, Marine Corps or State Guard will be sought to supervise the training. The program will embrace basic field training and basic small arms instruction. The field training will include the study of terrain from the military viewpoint, establishment and maintenance of communications, practice assemblies in daylight and in dark, and other courses. Arms instructions will cover teaching how to load and unload weapons, examination of weapons as to working order; effective firing positions, special instructions in sighting and aiming, rapid firing technique, and other duties.

Military officials, in emphasizing the value of such an organization point out that the familiarity which the members will enjoy with the faces, customs and habits of their neighbors in the community, makes them most valuable in combating sabotage efforts. They will detect, even more quickly than a secret service man from the outside, any strange faces in the community, or any unusual activities on the part of local inhabitants.

The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity.

Through conferences among the Military, Naval, State Guard and Minute Men officials, operation plans for each area will be carefully prepared, I am assured by the Third Corps Headquarters. Surveys will be made to determine the importance of facilities and installations which might be subjected to sabotage and raids; the availability of Military and Naval police and State Guard forces; and the quality and type of communications which are available for notification for additional protective forces when necessary.

Based on these surveys, definite missions will be assigned each of the organizations concerned; and the proper liaison will be arranged. All available firearms will be reported and those individuals to be armed with rifles will be assigned to tasks where the long-range and accurate fire of rifles will be necessarily employed. Those to be armed with shot guns will be assigned tasks where the short range, spreading fire of shot guns will be most effective.

As I attempted to outline before, no unnecessary discipline and training will be required. However, as this is serious business there will be exacted from all members obedience to orders, sobriety, and self-sacrifice. Military advisors suggest that time need not be spent on close-order or other military drill. It is not intended that this be a parade organization. But officers and men must be willing to cooperate and to devote time and work to meet any local situation.

I should also point out another cardinal rule of the new organization. We all know that an enemy raiding party does not stop to give considerations to a victim’s social background, or to his political affiliation, or to class distinction. Therefore, I give assurance that such considerations will completely absent from the organization, training and discipline of the Maryland Minute Men from top to bottom.

I now issue a call for volunteers to serve as Maryland Minute Men. Arrangements have been made to accept enlistments at once. State headquarters for the new organization will be the Office of the Adjutant General of Maryland, Fifth Regiment Armory, Baltimore.

However, persons can make known their readiness to serve at any of the State Armories, one of which is located in all the counties of Maryland except five. In these five counties; where no armories exists, namely, Garrett, Howard, St. Mary’s, Calvert and Charles Counties, other headquarters will be established, the location of which will be made known through the local press.

Already arrangements are made to receive group enlistments from the membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen’s groups of every type. The number of units to be formed in different sections of the State will depend upon the size and population of the area and also upon the important public facilities and military objectives, which are designated by the War Department in different sections of our State.

I wish to repeat that in every move, with respect to this organization, the advice and direction of Army officials will be sought, as has been the practice in connection with the organization and functioning of the Maryland State Guard.

And so, my fellow-Marylanders, I ask your support and assistance in this new undertaking which will be maintained at a minimum of expense. It will however, represent a maximum of protection by civilian soldiers, whose first duty it will be to stand in defense of their home, in protection of plants and facilities which are essential to life.

To these men, many of whom will be veterans of the last war, who incidentally may have “chafed at the bit” when they have observed their sons and younger men marching away recently to the Country’s defense, let me say that here is an opportunity that will make them truly an important part of the public defense forces. Here is a function of military organizations to which they can address themselves with enthusiasm, because it will be of utmost importance and will thereby release a number of regular Army forces for combat service abroad.

Inconvenient, yes; overtime work, yes. But let us remember that hardships and privations are now being suffered for us by General MacArthur and his valiant men in Bataan. Those who do not leave United States as a part of the armed forces to avenge the wrong done to Americans and to the United States flag abroad, will be untrue to these American boys if we do not protect their homes and their communities while they are away fighting for us. Let us preserve the communities and their firesides, so that there will be a familiar place to which they will be welcomed on their return after victory has, been won.

The flower of America’s young manhood now being sent to distant parts of the world will face the period of hardship and discouragement. But like the Crusaders of old, they are privileged to fare forth to free a land of civilization from the Barbarians.

America’s Crusade today is to wipe the scourge of slavery from a world of Hitler and the Japanese war lords, and to establish once and for all time the freedom of man and his dignity as an individual, and this should awaken a responsive chord in every heart.

No, we didn’t want this war. We went to all lengths to avoid it. And in so doing we laid ourselves open to just the very reverses that lack of preparedness has occasioned. Now that we are in this war, however, now that we know how necessary it is to fight as we have never fought before, not only to defend our Democracy, our own freedom, but to bring back freedom to all the enslaved people of the earth, we know America shall not fail. Maryland today, as in every other crisis in our Nation’s history, pledges itself to stop short of nothing to preserve American ideals and American privileges for generations to come. All Related Posts (on one page) | Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:

17 Comments[David Kopel,February 13, 2008 at 1:15am]Trackbacks

In the Supreme Court’s Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicisshould compel the present Court not to recognize the Second Amendment as an individual right.

A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit’s recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.

These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).

(show)In Parts III and IV of the brief, Maricopa points to state cases from Arizona and federal cases from the Fifth Circuit, to show that application of a strong standard of review for the individual right to arms does not lead to the wholesale invalidation of gun control laws. Accordingly, the Maricopa brief argues for strict scrutiny as the proper standard of review. (My ownbrief, filed on behalf of a law enforcement coalition including 29 California District Attorneys, also supports strict scrutiny, and has a short discussion of state right to arms cases upholding bans on gun possession by criminals.)

Parts I and II of the Maricopa brief present some standard textual and legal history arguments for the Second Amendment as an individual right. As in so many of the amicus briefs, it would have been better if the brief had omitted points which were already made in Respondent’s brief.

Perhaps the most important argument–which I wish would have been a major Part of somebody’s brief–is connecting the Second Amendment to the substantive due process line of cases. Justice Harlan’s definition of Fourteenth Amendment “liberty” in his Poe v. Ullmandissent included “the right to keep and bear arms.” This definition has been repeated many times in important cases in which the Court has protected unenumerated rights, including Griswold, Roe v. Wade (Stewart concurrence), Moore v. East Cleveland(right of extended family to live together), Casey v. Planned Parenthood (Kennedy-Souter-O’Connor opinion), and Lawrence v. Texas. The point is not that the right to arms is dependent on substantive due process; rather, the point is that the key modern cases for unenumerated “liberty” rights all acknowledge the right to arms.

The brief of Grass Roots South Carolina does a reasonable job of arguing for the right to have a handgun in one’s home as within the penumbral protection of constitutional “privacy”, but that brief too overlooks the force of Justice Harlan’s Poe language, which is clearly beloved by Justices Kennedy and Souter.

The other brief which address the “don’t disturb precedent” argument is the one from the Center for Individual Freedom. It argues that the Court’s 1939 Miller case was ambiguous, and thus set no anti-individual rights precedent. The brief discusses various circuit court of appeals decisions which have, in purported reliance on Miller, ruled against an individual right; the brief argues that these over-reading cases deserve little respect as precedent.

Part II argues that the “collective/states right” interpretation would, if actually endorsed by the Court, lead to drastic changes in current practices: states would have the right to sue the federal government over militia issues, to claim authority to disregard federal gun controls which interfere with the states’ militias (e.g., a Rocky Mountain state legislature enacts a law declaring all able-bodied adults to be part of its militia, and ordering those adults to arms themselves with, inter alia, machine guns and mortars), or to challenge federal deployment of National Guard units outside a state’s boundaries

Whether federal courts would rule in favor of a state on any given “militia rights” issue is, of course, uncertain. But a state’s rights Second Amendment would open the door for a wide variety of challenges. In contrast, an individual rights Second Amendment fits quite easily with over 200 years of state law experience of an individual right to arms, a right that exists in over 40 state constitutions.
As pointed out in the brief of the American Legislative Exchange Council, there have been two dozen laws which have been declared to be unconstitutional violations of a state right to arms provision. And, quite obviously, there are thousands more which have not. Using already-developed analytical techniques from the state cases (e.g., overbreadth, narrow tailoring), which are themselves based on federal First Amendment jurisprudence, would not be difficult for federal courts analyzing Second Amendment challenges to federal gun laws.

Rather notably, the ABA and San Francisco District Attorney briefs failed to point to a single case anywhere in the nation where a felon-in-possession law or a sentencing enhancement for actual use of a firearm in a violent crime was declared to violate a state constitutional right to arms.

If you’d like to read more blog analysis of the various briefs in DC v. Heller, check out Liebowitz’s Canticle. All Related Posts (on one page) | Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:

27 Comments[David Kopel,February 12, 2008 at 5:06pm]Trackbacks

A brief of the Citizens Committee for the Right to Keep and Bear Arms, and for several scholars, takes an unusual approach. As far as I know, it’s the first brief of its kind in a Supreme Court brief (although my knowledge of amicus briefs is far from comprehensive). Written by Washington state lawyer Jeff Teichert, the “Errors Brief” focuses entirely on refuting what it sees as plain errors in the briefs of DC and DC’s amici. The 9000 word limit drastically reduced the number of items which could be addressed, and the brief chooses to address some items at relatively great length, rather than greatly shrinking certain discussions so as to address more items briefly.

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:
  4. Goldwater vs. the Solicitor General, in DC v. Heller:…
  5. Claremont Institute Empirical Brief in DC v. Heller:
  6. NRA brief in DC v. Heller:
  7. Respondent’s Brief in DC v. Heller:


[David Kopel, February 12, 2008 at 2:14pm] Trackbacks

The brief of the Goldwater Institute in District of Columbia v. Heller is another brief that merits study by persons interested in seeing a model of a first-rate Supreme Court brief. Lawyers on the brief are led by Bradford Berenson, of Sidley & Austin, and by Clint Bolick, of Goldwater.

The brief’s focus is responding to a section in the Solicitor General’s brief, which had argued for intermediate scrutiny as a the standard of review in Second Amendment cases. The Goldwater brief is not a brief of firearms law experts; it is the brief of Supreme Court precedent experts, and it cites a vast number of cases to make its argument that strict scrutiny is the proper standard.

The Goldwater brief has an inherent advantage, since it devotes all 9000 words to a topic which the Solicitor General covered in just a few pages. But even with the limited space available, the Solicitor General’s brief was surprisingly shallow. The SG brief more or less declares its intermediate scrutiny test by fiat, and for support pointed to some election law cases.

Yet a short, well-written brief from the Libertarian National Committee points out, the cases cited by the Solicitor General themselves have a strict scrutiny standard. (Strict scrutiny for an “undue burden” on voters, intermediate scrutiny for everything else.) The Solicitor General brief just pointed to the intermediate scrutiny part of the election cases.

My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due. (UPDATE: A VC reader points out that the meta-data for the SG’s PDF says that the file was created at 9:14 PM on January 11, the due date.) The brief has no Table of Contents or Table of Authorities–both of which are required by Supreme Court rules. My guess would be that there was no time to prepare these mandatory parts of the brief because the brief took a sudden change in direction, perhaps on the day it was due, and all the available time was consumed by trying to cobble together an intermediate scrutiny section of the brief. Just a guess, but the absence of a TOC and TOA surely suggests that there was some unanticipated time crunch at the end. (UPDATE: Another commenter says that the SG frequently files late, and adds the TOC and TOA later.]

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:
  4. Goldwater vs. the Solicitor General, in DC v. Heller:
  5. State-level Battle of the Attorneys General in DC v. Heller…
  6. Claremont Institute Empirical Brief in DC v. Heller:
  7. NRA brief in DC v. Heller:
  8. Respondent’s Brief in DC v. Heller:


[David Kopel, February 12, 2008 at 2:15am] Trackbacks

Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I’m not sure it adds much to the treatment of these issues in Respondent’s brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).

Part II supports the D.C. Circuit’s having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General’s argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.

On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.

The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit’s decision would unleash a dangerous set of challenges to gun controls.

Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).

At Concurring Opinions, Michael O’Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.

It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York’s amicus brief in favor of D.C.’s cert. petition, is neutral at the merits stage.

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. Goldwater vs. the Solicitor General, in DC v. Heller:
  5. State-level Battle of the Attorneys General in DC v. Heller
  6. Battle of the Attorneys General in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:

45 Comments[David Kopel,February 11, 2008 at 11:01pm]Trackbacks

In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the “collective right” theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is “narrow individual right,” a right which applies only to persons actually on duty in a state militia.)

Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.

The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR’s AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative’s question about the NFA “escaped” from the “provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.”

There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief’s claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.

Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC’s ban on handguns in the home, rather than addressing restrictions on uncommon guns.

Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit’s Emerson case, that the Second Amendment is no bar to the federal government taking away people’s guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman’s words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent “a constitutional moment” repudiating the Waxman/Reno view of the 2d Amendment–just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: “You know, I believe in the Second Amendment. People have a right to bear arms.”

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. State-level Battle of the Attorneys General in DC v. Heller
  5. Battle of the Attorneys General in DC v. Heller:
  6. Historical briefs in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:

16 Comments[David Kopel,February 11, 2008 at 8:40pm]Trackbacks

The brief of Academics for the Second Amendment discusses the drafting and ratification of the Second Amendment. It argues that the history clearly points to an uncontroversial individual right to arms for private purposes, and argues that DC’s theory of the Amendment’s meaning is based on proposals which Madison and Congress rejected. My favorite part of the brief is its use of the phrase “a tub to the whale.”

A brief from the Institute for Justice supplies the history of the Reconstruction Congresses, and of the 14th Amendment. It shows that (whatever implications one might draw about incorporation), the understanding of the Second Amendment at that time was that it was a personal right to arms for private purposes, particularly the purpose of defending the homes of freedmen from Klan attacks.

And a brief for the President of the Pennsylvania Senate provides the history of the right to arms in that state.

These briefs counter arguments raised by DC and by its amici historians. As both these briefs acknowledge, proving that the 1776 Pennsylvania Constitution right to arms was not a right to self-defense arms is essential to their cause. Strangely, they cite a forthcoming article in a Rutgers law review, written by a protégé of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article’s claims could withstand serious scrutiny. I am unaware of any pre-publication article that has been cited by Heller and his amici which is not already available on SSRN or another public web site.

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. Battle of the Attorneys General in DC v. Heller:
  5. Historical briefs in DC v. Heller:
  6. Law Enforcement Brief in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:

43 Comments[David Kopel,February 11, 2008 at 1:37pm]Trackbacks

Today the Independence Institute filed my amicus curiae brief with the United States Supreme Court, in the case of District of Columbia v. Heller.

The Independence Institute brief is joined by a broad coalition of law enforcement: the Maryland State Lodge of the Fraternal Order of Police (by far the largest rank-and-file police organization in Maryland), 29 of California’s District Attorneys, the San Francisco Veteran Police Officers Association, the Texas Police Chiefs Association, the Southern States Police Benevolent Association, and many others.

Notably, the lead amici in the brief are the two national organizations of police firearms instructors, the International Law Enforcement Educators & Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). The brief explains how widespread civilian ownership of handguns contributes to the efficiency and success of police firearms training.

Part One of the brief summarizes the vast body of evidence showing how law-abiding citizens with handguns contribute to public safety. Surveys of criminals and of law-abiding citizens both indicate that defensive gun use is frequent in the United States, and provides a substantial deterrent to crime. Most notably, because approximately half of all American homes have a gun, only 13% of American home burglaries take place when the victim is home. In nations where handgun ownership is rare or illegal, the home invasion rate is about 50%.

A large number of confrontational burglaries (nearly a third) result in assaults or rapes, so defensive gun ownership in the home also reduces the assault and rape rates. The assault reduction alone makes the U.S. violent crime rate about 9% lower than it would be if home invasions took place at the rate typical in other countries. But in DC, the use of any gun for self-defense in the home is illegal.

DC and its amici claim, in effect, that ordinary, law-abiding citizens are too hot-tempered and clumsy to own a handgun for home protection. Part II of the brief refutes this invidious prejudice. The brief shows that the large majority of murders, including domestic homicides, are committed by people who already have criminal records–not by previously-law-abiding citizens. A half-century of data show that gun accidents have declined by 86% in the U.S.

Before the 1976 handgun ban, only 1/2 of 1% of crime gun seized by the D.C. police were lawfully-registered to District residents. Thus, the DC City Council cracked down on a population group (gun owners who obeyed the city’s registration and licensing laws) which had almost nothing to do with the city’s crime problem.

Part III relies on practical police experience to explain why handguns are the best arms for home defense, particularly in an urban area such as Washington, D.C.

Part IV suggests that strict scrutiny is the proper legal standard of review for most Second Amendment issues. Precedents from the U.S. Supreme Court and from state supreme courts point to the unconstitutionality of the DC ban on handguns and on self-defense.

Social science data about self-defense were little discussed in the briefs of D.C. and its amici, except that the American Public Health Association (APHA) brief does have a section arguing against Gary Kleck’s figure of 2.5 million annual defensive gun uses. Some empirical issues related to the law enforcement brief are also discussed in the American Academy of Pediatrics brief, and the D.C. brief itself.

All Related Posts (on one page)| Some Related Posts:

  1. Military Brief in DC v. Heller:
  2. District Attorneys, the ABA, and precedent in DC v. Heller
  3. Errors Brief in DC v. Heller:…
  4. Historical briefs in DC v. Heller:
  5. Law Enforcement Brief in DC v. Heller:
  6. The “Failed State” Brief in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:


[David Kopel, February 7, 2008 at 1:45am] Trackbacks

On Monday, the brief for Respondent was filed in DC v. Heller, the Supreme Court’s case involving the DC handgun ban. The brief for Petitioners (DC and Mayor Fenty) is here.

The first portions of each brief raise textual and historical arguments. DC argues that the preamble of the Second Amendment (“a well-regulated militia”) controls and limits the main clause (“the right of the people”). DC emphasizes that militias are subject to limitless state control.

The Heller brief offers well-known rules of construction from the Founding Era to argue that a preamble doesn’t limit the main clause. Both sides quote Marbury v. Madison. The Heller brief contains a great deal of American history, partly based on David Young’s new book The Founders’ View of the Right to Bear Arms (2007), which presents General Gage’s disarmament of the citizens of Boston as one of the key causes of the decision of Americans to finally resort to armed revolution, and as the kind of abuse which the Founders wanted to prevent in the new nation.

The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on “necessary to the security of a free State” being a reference to state governments, not a free polity. Respondent’s brief gives short shrift to this argument, citing various cases that governance of the District of Columbia is controlled by various parts of the Constitution which only limit (or used to only limit) Congress, and not state governments. Eugene Volokh’s Notre Dame L. Rev. article “Necessary to the Security of a Free State,” collects every use of “a free state” during the Founding Era, and shows that the phrase was a term of art which was used onlyto mean “a free polity” and never to mean “a free American state government.”

DC presents more social science data than does the Heller brief, which confines itself to some quick rebuttals. On both sides, the in-depth debate in social science is in the amicus briefs. (More on those next week, after the pro-Heller amici file on Monday.)

DC’s gun lock law literally requires that all guns in the home (rifles, shotguns, or pre-1977 handguns owned pursuant to a grandfathering clause) be locked up or disassembled at all times. The locking law makes an exception for guns on business premises and for guns being used in sporting activities. DC concedes that a ban on use of long guns for self-defense in the home would be unconstitutional, but argues that the functional firearms ban must contain an implicit self-defense exception. DC points to a case where a court found that a duress exception must exist in an another law.

Heller retorts by pointing to the 1977 D.C. Court of Appeals (the District’s equivalent of a state supreme court) case of McIntosh v. Washington. In that case, the Court of Appeals upheld the self-defense ban as an intended feature, not a bug, of the District’s new gun law.

Both briefs are very well-written, and merit study by any law student or lawyer looking for good examples of persuasive brief-writing on sophisticated topics.

All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:

112 Comments[David Kopel,February 7, 2008 at 5:38pm]Trackbacks

The NRA amicus brief in DC v. Helleris now on-line. Although the Court will be deluged with amici, the NRA brief is likely to get a close read, for the same reasons that Justices pay close attention to the AFL-CIO brief in a labor case, or the ACLU brief in a free speech case. Here’s a summary:

Part I goes through the major textual and structural arguments of the Second Amendment as an individual right. Does not use a lot of Framing Era quotes (of which there are a lot in Respondent’s brief, and will be more in other amicus briefs). Explains how the right of the people to keep and bear arms makes possible the existence of a well-regulated militia. This argument is supported, in part, by a discussion of the NRA’s own history is promoting marksmanship and safety training, including its leading role in certifying police firearms instructors. My favorite part is President Truman’s letter thanking the NRA for its efforts during World War II, which “have materially aided our war effort.”

Part II argues for a strict scrutiny standard in review of gun laws, based on Supreme Court precedent. It distinguishes “fundamental” from the way that term is used in deciding whether to incorporate a criminal procedure provision from “rights fundamental to our democracy.” It notes that the Second Amendment declares itself to be “necessaryto the security of free state”, and therefore must be fundamental to American democracy itself.

The NRA brief engages the argument raised in pro-DC amicus from Professors Winkler and Chemerinsky. They had argued for a “reasonableness” standard of review (with “reasonablness” meaning, in effect, that almost any law short of total destruction of the right is permissible). The W&C brief reasoned that viewpoint discrimination is impossible in a Second Amendment context, and that therefore strict scrutiny is unnecessary. The NRA responds that viewpoint discrimination certainly is possible, especially under a weak standard of review, since gun laws could be used to disarm political opponents. The point could have been illustrated by abundant historical examples, but perhaps space limitations precluded this.

Part III addresses crime and accident statistics, and points out that only a minute fraction of the 200 million guns in America are misused. Modern state court cases (e.g., Rhode Island’s Mosby v. Devine) as well as common law classics (Semayne’s Case) are deployed to argue for the right of armed self-defense in the home.

The comments section of my previous post (on Heller’s brief) was impressively thoughtful, as it was clear that commenters had read the Heller and DC briefs, and were offering commentary to advance the discussion. (Rather than getting into troll-fights over gun policy in general.) Commenters, keep up the good work! Please read the NRA brief before commenting, and of course also read the Winkler-Chemerinsky brief if you want to comment on the standard of review issue.

All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:


[David Kopel, February 7, 2008 at 7:57pm] Trackbacks

Just-posted: Marc Ayers (of the Bradley Arant firm in Birmingham) and Don Kates have written a Brandeis brief in the Supreme Court handgun brief. The brief is filed on behalf of the Claremont Institute and a group of scholars.

The main theme of the brief is debunking the “more guns, more murder” meme, which pervades the brief of DC and many of its amici. The theme is elaborated in the briefs of the American Academy of Pediatrics, of the American Public Health Association, and of Professors James Alan Fox and David McDowall.

The single largest topic is a 1991 article in the New England Journal of Medicine by Colin Loftin. The NEJM article reported that the DC handgun ban had reduced homicides and the suicide in the District.

The Claremont brief points out that the NEJM article used raw numbers rather than rates, and used the wrong start date for the law (which was delayed by an injunction issued by the D.C. Superior Court). Moreover, when one compares DC to the other 49 largest U.S. cities, or to Virginia and Maryland, the D.C. homicide rate grew worsein comparison to these other jurisdictions. Notably, a meta-study by the National Academies of Science agreed with the critiques of Gary Kleck and Chester Britt that the NEJM article’s data were so fragile as to be of no persuasive value; even small adjustments of the start/end date negated the study’s findings.

Given shorter treatment in the Kates/Ayers brief is another study which used the circulation of Guns & Ammomagazine as a proxy for gun ownership levels. The study found that higher circulation of Guns & Ammo was associated with higher homicide. This finding is frequently restated in the briefs of DC and its amici as a finding that more guns leads to more murder. Kates/Ayers cite John Lott’s article pointing out that during the study period, Guns & Ammowas giving away a huge number of free copies (to maintain circulation numbers), and targeted the give-aways at cities where it was believed that crime was increasing. The circulation of other gun magazines (which were not using G&A’s circulation-boosting method) shows no relation to homicide.

Kates/Ayers present extensive data showing that gun density is not related to homicide. For example, since the late 1940s, per capita gun ownership in the U.S. has soared, while homicide rates have fluctuated with little apparent relation to gun density. Likewise, comparative data from Europe show no relation between gun density levels and homicide rates.

DC has argued that its ban on possession of a functional firearm in the home contains an implicit exception for self-defense. Kates/Ayers explore what such an exception might mean, and argue that there is no way for a Court, or a DC resident, to discern the terms of the alleged self-defense exception.

All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. DC v. Heller, amicus brief on racial issues:
  5. Claremont Institute Empirical Brief in DC v. Heller:
  6. NRA brief in DC v. Heller:
  7. Respondent’s Brief in DC v. Heller:

48 Comments[David Kopel,February 8, 2008 at 1:00pm]Trackbacks

In the Supreme Court’s DC handgun ban case, a brief from the Congress on Racial Equality argues that there is a long history in America of gun controls being enacted and applied with racially discriminatory intent. A brief for makes similar arguments, with more detail about Georgia. [I think it’s wonderful to see a 21st-century in which a black man won 2/3 of the vote in the Georgia Democratic primary, and a gun-rights organization from Georgia is calling for the U.S. Supreme Court to pay attention to problems of racial discrimination.]

In support of the DC handgun ban, a brief from the NAACP LDF uses most of its words to argue against overturning what its says is the large body of anti-individual rights precedent. The brief also points out the high rate of gun crime victimization by blacks. Pages 29-31 of the NAACP LDF brief anticipate the arguments presented CORE/GeorgiaCarry briefs, and argue that the Fourteenth Amendment’s equal protection clause is sufficient to address any problem of racial discrimination in gun laws. See also NAACP Br. at 19 n.20 (DC’s ban is not racially discriminatory, and in any case, Equal Protection and Due Process, are sufficient to address the issue, without need for an individual rights Second Amendment).

I don’t think there’s any reasonable dispute that much of the gun control in American history is tainted by racial discrimination. But, commenters, do you think that the CORE and GeorgiaCarry briefs overcome the NAACP’s anticipatory counter-arguments? Please write your comments after reading the briefs, rather than making other arguments which could have been made, but were not.

All Related Posts (on one page)| Some Related Posts:

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  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. Congressional Brief in DC v. Heller:
  5. DC v. Heller, amicus brief on racial issues:
  6. Claremont Institute Empirical Brief in DC v. Heller:
  7. NRA brief in DC v. Heller:
  8. Respondent’s Brief in DC v. Heller:

39 Comments[David Kopel,February 8, 2008 at 4:39pm]Trackbacks

A brief in favor of Respondent Heller has just been filed on behalf of 250 Members of the United States of House of Representatives, 55 United States Senators, and the President of the United States Senate, Richard B. Cheney. In January, a brief in support of the DC handgun and self-defense ban was filed by 18 Members of the U.S. House of Representatives. The latter brief suggests that “Consideration of, or deference to, Congress’s experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent with the Court’s role.” Indeed true.

The 250/55/1 brief explains that Congress has repeatedly declared the Second Amendment to be an individual right, in the 1866 Freedmen’s Bureau Act, the 1941 Property Requisition Act, the 1986 Firearms Owners’ Protection Act, and the 2006 Protection of Lawful Commerce in Arms Act.

All Related Posts (on one page)| Some Related Posts:

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  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. LGBT brief in DC v. Heller:
  5. Congressional Brief in DC v. Heller:
  6. DC v. Heller, amicus brief on racial issues:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:

63 Comments[David Kopel,February 9, 2008 at 3:31pm]Trackbacks

A brief filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty presents a LGBT perspective on the Second Amendment. The main arguments are: 1. LGBT people have a heightened need for handguns for self-defense, because of the frequency of hate crimes, the majority of which involve attacks in the home. 2. The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right, since courts are extremely deferential to legislative/executive decisions on military issues, including discrimination against LGBT people in the military. Unlike with the other briefs that I’ve blogged on, there is no counterpart brief in support to the DC handgun ban to which I can link. No LGBT organization participated in an amicus brief on DC’s side (although, of course, some of DC’s other amici are “gay-friendly,” just as many of Heller’s other amici are).

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  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. The English Roots of the Right Arms. DC v. Heller brief:
  5. LGBT brief in DC v. Heller:
  6. Congressional Brief in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:


[David Kopel, February 9, 2008 at 5:10pm] Trackbacks

A brief for the Cato Institute and legal historian Joyce Malcolm, in the DC handgun ban case, explicates the English common law roots of the American right to arms, and the development of that common law right in America.

Many of the briefs on both sides of this case has brief treatments of the English roots. A mistake in my view, since the material is so repetitious. The English issue is covered in some depth in a pro-ban brief filed by historians Jack Rakove, Saul Cornell, and others.

In my view, the Cato/Malcolm brief demolishes the claim that the 1689 English Bill of Rights, Blackstone’s Fifth Auxiliary Right, and other common law sources did not recognize a right to own firearms in the home for personal defense. The Cato/Malcolm brief is far broader and deeper in its use of English sources, and requires no verbal gymnastics to attempt to explain away the plain languages of the key sources. Part II of the brief leads the reader through the development of the common-law right in America, from the colonial era through the 19th century.

Jeffrey Toobin has written that Justice Souter reveres the common law; if so, the Cato/Malcolm brief may be especially persuasive to him.

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  4. Women’s Rights Brief in DC v. Heller:
  5. The English Roots of the Right Arms. DC v. Heller brief:
  6. LGBT brief in DC v. Heller:…
  7. Claremont Institute Empirical Brief in DC v. Heller:
  8. NRA brief in DC v. Heller:
  9. Respondent’s Brief in DC v. Heller:


[David Kopel, February 9, 2008 at 5:51pm] Trackbacks

A brief on behalf of 126 women state legislators, and several academics, presents a women’s rights perspective on the DC ban on handguns and on home self-defense with any firearm.

Part I points out that, compared to the past, women are more likely to live alone. Young women are less likely to move straight from their father’s house to their husband’s house, but may instead live on their own. A large number of elderly women live alone, because they have outlived their mates, or for other reasons. Accordingly, the paternalistic assumption that all women are under the protection of a man has no validity today.

Part II notes the prevalence of violence against women, particularly domestic violence. (This point is also made at great length in a pro-prohibition amicus filed on behalf of many state domestic violence groups). The brief quotes Andrea Dworkin discussed the battered woman: “She has a constitutional right to a gun and a legal right to kill if she believes she’s going to be killed. And a batterer’s repeated assaults should lawfully be taken as intent to kill.” Other feminist advocates of women’s empowerment for self-defense are cited and quoted too.

Section B of Part II summarizes the relevant social science evidence, showing that armed self-defense by women is effective. Although the domestic violence groups cited studies showing that guns caused an increased risk of homicide to a domestic violence victim, the brief points out that the research shows an increased risk if an abuserhas a gun. The data show no statistically significant risk for gun ownershp by victims who lives apart from the abuser and who has her own gun.

The remainder of Part II points out that under cases such as Castle Rock and Warren v. D.C.women are victimized because of law enforcement failure to act against known threats (or even women who rely on false 911 promises that help is on the way) have no legal remedy.

Part III points out that because most women have less upper body strength than men, a handgun is superior to a long gun for self-defense. Also:

Advocates of women’s reproductive choice commonly argue that pregnancy disproportionately affects women due to their innate gender-based characteristics. Thus, they argue, courts failing to recognize the right to terminate a pregnancy therefore discriminate against women and bar their ability to participate as equal and full members of civil society. While choices about pregnancy no doubt impact a woman’s ability to determine the course of part of her life, it is not clear why such a right should be due greater protection than a woman’s ability to defend her very existence.

The brief acknowledges that some women are hostile to gun ownership. Historically, A large segment of women were likewise averse, moderately supportive or even downright indifferent to female suffrage and women’s reproductive choice. However, the fact that only some will choose to exercise their right to self-defense should in no way prove a legal impediment to those women for whom owning a firearm is necessary to their ability to determine the course of their lives and consequently their place in society.

Read in conjunction with the brief of the domestic violence groups, the two briefs present the court with the contrasting perspectives, in regard to the gun issue, of victim feminism and empowerment feminism.All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:
  4. Women’s Rights Brief in DC v. Heller:
  5. The English Roots of the Right Arms. DC v. Heller brief:…
  6. Claremont Institute Empirical Brief in DC v. Heller:
  7. NRA brief in DC v. Heller:
  8. Respondent’s Brief in DC v. Heller:

17 Comments[David Kopel,February 10, 2008 at 3:06am]Trackbacks

On behalf of the Second Amendment Foundation, George Mason law professor Nelson Lund has written a meticulous textual analysis of the Second Amendment, in the Supreme Court handgun ban case, District of Columbia v. Heller.

In the tightly-written brief, Lund argues that every permutation of the militia-only interpretation of the Second Amendment leads to obviously absurd results. (Not only as a practical matter, but as a matter of textual interpretation.)

He urges that the language from United States v. Miller, suggesting that “‘private citizens might have a right to possess weapons that are ‘part of the ordinary military equipment or [whose] use could contribute to the common defense'” be treated as dicta. When Millerwas decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Millertest would create a constitutional right to machine guns.

Lund explains the preamble of the Second Amendment as an “ablative absolute or nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause.”

A telling example is provided by Article 3 of the Northwest Ordinance:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

This provision – ratified by the same Congress that drafted the Second Amendment – attests to a belief in the beneficent effects of schools and education. But it does not imply that “[r]eligion, morality, and knowledge” are their only purpose.

[Side note: the inclusion of this quote in the briefing can be traced to independent scholar David Young having seen the quote above the entranceAngell Hall, at the University of Michigan. It is a perfect example of the importance of inscribing in stone the noblest statements of public virtue, so that those statements will be known to future generations, and will be used to encourage liberty and responsible self-government.]

As for the rest of the brief, it merits the reader’s careful study. No brief in this case is as lucid. As a former Supreme Court clerk, Lund writes with the precision that is typical of Solicitor General briefs. It is not uncommon for briefs (on whatever issue) to puff up themselves with bombast and extravagant language. The Lund brief is a superb example of how to write authoritatively but not pompously; for the latter mode betrays an underlying insecurity about the correctness of one’s argument.

There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this weblog include lawyers of varying degrees of experience, and law students; some of them have an interest in Second Amendment issues, while almost all of them aspire to improve their brief-writing. If you want to read a model Supreme Court brief, this is the brief to read.  

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  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:
  4. Women’s Rights Brief in DC v. Heller:…
  5. Claremont Institute Empirical Brief in DC v. Heller:
  6. NRA brief in DC v. Heller:
  7. Respondent’s Brief in DC v. Heller:

36 Comments[David Kopel,February 10, 2008 at 2:32pm]Trackbacks

In the Supreme Court handgun ban case, the brief for Jews for the Preservation of Firearms Ownership presents an argument on a highly emotional topic in a very sober and solid manner. Gun bans do not always lead to genocide: Luxembourg bans all guns–and provided the sculpture of the destroyed revolver with a twisted barrel that now adorns the plaza outside the United Nations. The gun-hating government of the Duchy has not attempted genocide against is disarmed subjects. However, as the JPFO brief shows, governments which do perpetrate genocide dowork hard to disarm the victims beforehand.

Addressing this argument is something which the anti-gun lobbies have rather conspicuously avoided over the years. In 1995, I participated in a international gun control symposium New York Law School; for my contribution, I wrote a favorable review of JPFO’s book Lethal Laws. The staff of New York Law School Journal of International and Comparative Law contacted gun control groups, and solicited an article to counter mine. There were no takers.

While the pro-ban amicus briefs in DC v. Heller do anticipate some of the arguments (e.g., gun control’s racist roots, Gary Kleck’s figure of 2.5 million annual defensive gun uses) which were expected to be raised by Heller or his amici, none of the pro-ban briefs address the genocide issue. The closest thing to a counter-brief is that of by the Educational Fund to Stop Gun Violence, filed on behalf of a large number of organizations, including several Jewish ones. The brief argues that the Second Amendment could not possibly have been written to protect the means of resistance to tyranny. The EFSGV brief and the JPFO brief both provide evidence from Founding Era writings to support their respective arguments.

All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:


[David Kopel, February 10, 2008 at 7:48pm] Trackbacks

On behalf of several association of private security guards and detectives, and the Buckeye Firearms Foundation, a brief in DC v. Heller supplies the facts of the appalling mismanagement and institutional incompetence of DC’s Metropolitan Police Department. Almost everyone who lives or works in the District of Columbia is well aware that the District’s government performs very poorly compared to almost all other big-city governments in the United States. Nevertheless, the Buckeye brief is shocking.

The four core empirical subparts of the brief are titled: “The MPD Has A Significant Problem Hiring And Retaining Qualified Police Officers.” “The MPD Has A Significant History Of Mismanagement.” “The District’s ‘911 System Is A Joke’.” and “The MPD Has A Significant History Of Corruption.” Every one of these points is proven beyond a reasonable doubt, relying almost entirely on reports in Washington newspapers.

Moreover, although paying for security, through a private security guard firm, is still legal in DC, the MPD controls the licensing of security guards, and works hard to suppress the private security business through licensing abuse, and by prosecuting security guards on specious charges.

The brief then points out that the DC government enjoys civil immunity from persons who are injured because the MPD’s non-feasance, even when persons were injured because they relied on false promises from DC 911 operators that help was on the way.

Thus, the decent, law-abiding citizens of the District have no other recourse but to protect themselves (or to hire security guards, if the , and, the brief argues, the Court should recognize the right of the District’s citizens to do so themselves.

All Related Posts (on one page)| Some Related Posts:

  1. The “Failed State” Brief in DC v. Heller:
  2. Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
  3. Nelson Lund brief in DC v. Heller:…
  4. Claremont Institute Empirical Brief in DC v. Heller:
  5. NRA brief in DC v. Heller:
  6. Respondent’s Brief in DC v. Heller:


[David Kopel, January 26, 2008 at 10:56pm] Trackbacks

Obama’s Victory Speech: Sounds like a President

Like France, but unlike the Ireland or the United Kingdom, the United States combines the job of Head of State and Head of Government into a single person. A citizen can disagree with governmental policy proposals of Barack Obama, just as a citizen could disagree with the the policies of Ronald Reagan. But there is no reasonable doubt that Reagan did an excellent job in his role as Head of State. A patriotic American can appreciate the good work of a President as Head of State, even while disliking much of the President’s work as Head of Government. Senator Obama’s victory speech in South Carolina suggests that he too might be an outstanding Head of State.

114 Comments[David Kopel,January 25, 2008 at 4:24am]Trackbacks

Carter-Bush tax rebates

Here’s how to deal with a recession: A federal government which is already spending more than its income should borrow even more money, so as to give lots of people a tax rebate. This is the bipartisan plan of President Bush and Congress. They are taking a leaf from the presidency of Jimmy Carter.

Even accounting for inflation, the Bush-Reid-Pelosi rebate is far more profligate than the proposed Carter rebate of 1977. But the two rebates appear to be based on the same demand-side principles.

President Carter also proposed tax rebates during the 1980 election campaign, as an alternative to Ronald Reagan’s calls for tax cuts.

Some of the critics of Carternomics were known as “supply-siders.” Ronald Reagan and his supporters argued that the best way to promote economic growth was not for the federal government to give people money, but for the government to cut marginal tax rates for the future, thereby spurring “supply-side” production and investment. The Bush tax cuts of 2001, and much of the tax policy of the rest of the Bush administration, were implementations of supply-side policy.

But the 2008 tax rebate brings us full circle back to 1980, as the final year of the Bush administration increasingly resembles the final year of the Carter administration– including national malaise, getting tough on Israel but not on Palestinian terrorists, support for the DC handgun ban, the Olympics hosted by a communist regime with contempt for human rights, and a consensus that the current adminstration is lacking in competence.

There are important differences, of course. Including the probability that if the next President is a transformational one, that President will not an ideological successor of the genial, far-right Ronald Reagan, but instead will be the genial, far-left Barack Obama.

58 Comments[David Kopel,January 22, 2008 at 11:55am]Trackbacks

The EU Does Something Right on Technology Policy:

Sam Karnick’s blog “The American Culture” quotes my positive reaction to the EU’s pro-privacy stance on search engines collecting IP addresses. The EU position is contrary to Google’s practices. In some European countries, Google’s search engine dominance is even greater than in the United States.

5 Comments[David Kopel,January 22, 2008 at 11:06am]Trackbacks

Machine gun bleg

How many machine guns are currently in civilian (non-government hands) pursuant to the registration and tax system of the 1934 National Firearms Act? Of course these would be guns manufactured before May 19, 1986, thanks to 18 USC 922(o). How many NFA civilian machine guns have been used in a crime? My guess is about “100,000 guns in civilian hands” and “1 crime gun.” However, comments with precise citations would be much appreciated.

131 Comments[David Kopel,January 14, 2008 at 1:35am]Trackbacks

On Friday, 20 amicus briefs were filed in support of the District of Columbia government, in the case challenging the District’s ban on handguns and on functional firearms. The briefs are here.

Most notably, the Solicitor General asked that the decision of the Circuit Court of Appeals for the District of Columbia be reversed and remanded. Details are in Jonathan Adler’s post, below.

If not for the massive volunteer work of persons concerned about the Second Amendment, George W. Bush would not have won the very close elections of 2000 and 2004. To state the obvious, the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was “Maybe.”

The SG brief was one that might have been expected from the administration of President John Kerry. As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.

The 2004 Bush victory over Kerry made a great difference in the US posture at the 2006 UN gun control conference, and in the signature of the Protection of Lawful Commerce in Arms Act. The election does not appear to have made a difference in the management of the Bureau of Alcohol, Tobacco, Firearms & Explosives, or of the Office of the Solicitor General.

In the Comments below, there will be some people who want to engage in a troll-driven debate over the gun issue in general, and others who will want to criticize or praise the Bush administration for the SG brief. However, I encourage readers instead to read one of more of the amicus briefs in toto, and to offer thoughtful comments on the brief. Further, if you find factual errors, misleading statements, or erroneous citations in one of the amicus briefs, please point them out, and, if possible, provide any additional citation supporting your claim; please confine such error correction to narrow points, rather than broad argument over the thesis of a brief.

Update: Interviewed by Glenn and Helen Reynolds this weekend, Rudy Giuliani declared that he supported the individual rights Second Amendment, “as interpreted by the Parker decision.” The comment would seem to put him at odds with the position of the Bush administration, whose brief claims that Parker was wrong as a matter of law, and should be reversed and remanded.

Related Posts (on one page):

  1. Amicus Briefs for Petitioner in D.C. v. Heller:
  2. DoJ Supports D.C. andIndividual Rights Interpretation:


[David Kopel, January 10, 2008 at 6:28pm] Trackbacks

D.C. lawsuit against gun manufacturers is dismissed:

A unanimous 3-judge decision of the District of Columbia Court of Appeals has dismissed a municipal lawsuit brought against firearms manufacturers, District of Columbia v. Beretta et al. The court ruled that the suit was barred by the Protection of Lawful Commerce in Firearms Act, which was passed by Congress in 2005, and which by its terms applies to all pending and future cases.

In the first part of the decision, the court rules that the congressional act applies to lawsuits brought under D.C.’s Strict Liability Act, which imposes absolute liability on manufacturers for certain firearms injuries. The second part of the decision rejects various arguments that it is unconstitutional for a congressional statute to be applied to a lawsuit that has already been filed.39 Comments

[David Kopel,January 8, 2008 at 11:39am]Trackbacks

New research on the Second Amendment

Now online:

Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing ‘The True Palladium of Liberty,'” 3:2 Tennessee Journal of Law and Policy 183 (2007). St. George Tucker was the leading legal commentator of the Early Republic. His edition of Blackstone, which included copious annotations and appendices written by Tucker, was the foundational legal treatise of its era, and the first scholarly analysis of the new U.S. Constitution, and of how American law was diverging from its British ancestor. Halbrook’s article shows that Tucker regarded the Second Amendment as an individual right which included a right to own firearms for self-defense and hunting. The article also points out deficiencies in Saul Cornell’s treatment of Tucker; Cornell has a tendency to quote Tucker’s analysis of militia issues as if the analysis were about the Second Amendment, and to gloss over what Tucker actually wrote about the Second Amendment.

“What Does ‘Bear Arms’ Imply?” Working Paper by Clayton Cramer and Joseph Olson. Gun prohibition advocates, including the D.C. government in its brief in D.C. v. Heller, contend that the words “bear arms” in the Second Amendment have an exclusively military connotation, and therefore “the right of the people to keep and bear arms” refers exclusively to bearing arms as part of service in a formal state militia. Cramer and Olson show that “bear arms” never had an exclusively military connotation, either before ratification of the Second Amendment, or in the following decades.

“Pistols, Crime, and Public Safety in Early America” is another Working Paper by Cramer and Olson. The authors show that the governments of Founding Era were familiar with handguns, and never regulated them differently from long guns. The typical pistol of the late 18th century could fire only a single shot; however, multi-shot pistols had already been invented; many handgun owners provided themselves with multi-shot capacity by carrying two or more handguns, which was not difficult, since there were many very compact handguns. Accordingly, the successful commercial development of the multi-shot handgun (the Colt’s revolver in the 1830s) was (unlike, for example, radio) an example of technological progress that was well within the contemplation of the Founders.91 Comments

[David Kopel,January 2, 2008 at 5:28pm]Trackbacks

Equino-Human historical fantasy fiction:

My Independence Institute colleague Rob S. Rice has written a new book of historical fiction, titled Archival: Most Secret. The book tells three loosely-related stories: about a dissolute Scottish officer who ends up fighting in the Battle of New Orleans, about the declining years of Randolph Churchill, and about a British airman who is shot down over Crete in WWII. The common thread of these stories is a secret British ministry which has been involved with human-animal transformations. Each of the stories involves an equine-related transformation. You can order the book for $14.95 from Lulu, where you can also read the opening pages. I thought that the stories were interesting, and that all of them picked up steam as the stories progressed. That said, the format of the book (reproducing the full text of various documents purported to come from secret British archives) results in the plot moving forward relatively slowly on a per-word basis–especially in the Churchill story. But if you like horses and U.K. historical fiction, it’s worth your time to read a few pages, and decide if the book is your cup of tea.14 Comments

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