Saturday, March 22, 2008

Gun Rights and Reconstruction:

Charles Lane, author of The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction, writes in today's Washington Post about the import of Reconstruction for understanding the extent to which the Constitution protects gun ownership.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote. And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense. But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.) After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status.

The Freedmen's Bureau Act of 1866 promised that "personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." This was no theoretical concern. As senators noted during the debate on the bill, many Southern states sought to reimpose legal bans on gun ownership by blacks -- leaving them at the mercy of Klansmen and other white terrorists.

Purim Headlines:

A day late, but the Jewish equivalent of April Fools headlines. Very funny.

Weingarten on the Pundustry: In the Sunday Washington Post Magazine, humorist Gene Weingarten reports on his experiment wholly immersing himself in Web, TV, radio, and newspaper punditry for 24 hours straight.
Talk About Old News: From the Associated Press:
  The explosion of a star halfway across the universe was so huge it set a record for the most distant object that could be seen on Earth by the naked eye.
  A star 7.5 billion light years away exploded, giving off the brightest gamma-ray burst afterglow ever seen.
  The aging star, in a previously unknown galaxy, exploded in a gamma ray burst 7.5 billion light years away, its light finally reaching Earth early Wednesday.
  The gamma rays were detected by NASA's Swift satellite at 2:12 a.m. "We'd never seen one before so bright and at such a distance," NASA's Neil Gehrels said.
This story is sooooo 7.5 billion years ago.
Taiwan Presidential Election: Results and Process.

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.


Friday, March 21, 2008

Expelled from "Expelled":

P.Z. Myers wasn't allowed in, but his guests were. More here and here.

Post-Game Wrap Ups From the Heller Line: Was it worth it to wait in line for a day or two to see the Heller argument? Apparently so, at least according to the people who did it. GW Law students Tyson Horrocks and Ryan Haws were #3 and #4 in line, and they raved about the experience. A few questions I asked them:
Kerr: So you waited in line for about 36 hours for the Heller argument. Was it worth it?
Haws: Absolutely. Oral arguments were incredibly interesting, and the Justices' interplay over the limits of the second amendment was lively and included some great one-liners. I feel like I couldn't have chosen a better day for a first visit.

Kerr: What was the high point of the experience?
Haws: The argument was obviously the high point, but the wait wasn't bad. The line was full of law students, attorneys, and gun enthusiasts, and the discussion was always interesting. Also, who can complain about having so much time to spend reading the best casebook ever?

Kerr: What was the low point of the experience?
Horrocks: The low point was Sunday night into Monday morning. The wind was brisk so it was FREEZING cold. It was one of those mornings that you looked at your clock around 3 in the morning and were thankful the night was halfway over.

Kerr: What did you do with all your stuff when you finally got into the Supreme Court building?
Horrocks: Ryan Haws' wife came and picked up the bulky gear at around 6:15 Tuesday morning. The rest of our stuff was placed into a locker inside the building.
Another group of GW law students was near the end of the line that got in to the argument; "Mr. MG" filed his report here.
Oh, Those Hypocritical Conservative Justices.

Here they talk about "strict construction, federalism, and judicial modesty." And now we see that the Heller Second Amendment argument "is about" "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." "After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right." That's what Dahlia Lithwick (Slate) reports.

Here's the trouble: To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text. To say "that 'when a fundamental right is at stake, there is a role for judicial review,'" as Lithwick quotes Heller's lawyer saying, is not "in the spirit of Roe v. Wade." It's in the spirit of every case (say, every First and Fourth Amendment case) that is applying a constitutional right that's right there in the constitutional text.

Now of course some argue that the Second Amendment's text, properly interpreted, does not secure an individual right. I disagree with this, and so apparently do the conservative Justices, but there's obviously such an argument to be made. But Lithwick doesn't make it.

Lithwick says the conservatives are "abandon[ing] ... strict construction." But to actually make this bare assertion into an argument, she has to do two things. First, Lithwick must show that the conservative Supreme Court Justices have actually espoused "strict construction." Justice Scalia, for instance, has expressly rejected it: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be -- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be constructed reasonably, to contain all that it fairly means ...." Second, Lithwick must show that an individual rights view of the Second Amendment is inconsistent with strict construction (or, better yet, with whatever the conservative Justices have actually endorsed). Her account doesn't even try.

Likewise as to "judicial modesty." (David Bernstein has covered federalism very well in an earlier post.) Judicial modesty can mean many things; for instance, it could mean not reaching out beyond the facts of a particular case in order to set forth broad principles for the future. On this view, striking down the handgun ban on individual-rights grounds but reserving for later other questions (such as the proper standard of review for narrower regulations, the proper rules for other weapons, and so on) would be quite modest.

Or it could mean reading the provision in a way that doesn't unnecessarily interfere with the political branches, which sounds like what Lithwick is referring to. ("[Dellinger] reminds Kennedy that he of all people would hate a 'national government that sets a single standard for rural and urban areas, for East and West, North and South,' and that the right to own guns causes 'disputes among experts' such that the courts should hang back and allow the local legislatures to thrash it out.")

But again this assumes the conclusion about what the text means. After all, the conservative Justices agree that, for instance, the First and Fourth Amendments "set[] a single standard for rural and urban areas, for East and West, North and South" and constrain "local legislatures." They may disagree about the particular standard that should be chosen (and in very rare circumstances, such as obscenity law, they may endorse slightly different standards for different areas). Yet they agree that "judicial modesty" means not unnecessarily interfering with the political branches, and they agree that it is necessary to enforce those constitutional constraints that the constitutional text actually imposes.

There are a few scholars whose view of "judicial modesty" is that judicial review should be largely or entirely abandoned. (Lino Graglia at the University of Texas is one.) But none of the conservative Justices on the Court have ever endorsed this view.

Finally, consider one more quote: "When Gura says that the court should be taking normative questions out of the hands of legislature," Lithwick writes, "the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once." The conservative Justices have many disagreements with the Warren Court, on matters such as Miranda or (reaching into the early Burger Court) Roe v. Wade. But all of them have agreed that enforcing those rights that are actually constitutionally protected isn't "channeling the whole Warren Court" but rather channeling Chief Justice Marshall's position in Marbury v. Madison and in the other constitutional cases that went after it.

It's always appealing to accuse the other side of hypocrisy or inconsistency with its own stated beliefs -- after all, one can then set aside the hard work of actually showing why their beliefs are wrong, and instead point out that their positions are mistaken even under their own stated principles. But to do this, one actually needs to demonstrate an inconsistency, with the other side's actual beliefs and not with the beliefs that one is ascribing to them for rhetorical purposes.

Related Posts (on one page):

  1. Oh, Those Hypocritical Conservative Justices.
  2. Lithwick on Heller:
Taiwan Election Coverage:

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.

Fellowships for Aspiring Law Professors:

Paul Caron has a very useful list here. Interestingly, almost none of these programs existing when I was on the teaching market 13 years ago, though I somehow managed to procure a one-year grant to be a research fellow at Columbia. FWIW, of the five entry-level professors George Mason has hired so far this year, four have served as either post-J.D. research fellows or visiting assistant professors.

Child Abuse:

I find the following quote, from the article on vaccines linked to by Jonathan, below, horrifying:

In the wake of last month’s outbreak, Linda Palmer considered sending her son to a measles party to contract the virus. Several years ago, the boy, now 12, contracted chicken pox when Ms. Palmer had him attend a gathering of children with that virus. "It is a very common thing in the natural-health oriented world," Ms. Palmer said of the parties.

I had chicken pox as a kid, and I remember it as a very unpleasant experience, to say the least, and I didn't have an especially severe outbreak. Measles, I take it, is worse and also more dangerous. Parents like Ms. Palmer are not only exposing their own children to horrible illnesses easily preventable by vaccines, but they are putting other children, including my own daughter, at risk, since the measles vaccine is only 95% effective. (And what about adults who either received an ineffective vaccine or immigrated from a country where vaccination was not universal)? A Ms. Carlson says, "I cannot deny that my child can put someone else at risk."

Without the externality of putting other people at risk, I think mandatory vaccination would be a close call. With it, I'd say that unless a parent is going to keep his children at home and not expose them to vaccinated children, make them get vaccines. Too unlibertarian for you? Make them pay a fine equal to the monetary value of the level of risk to others they're creating, to be used perhaps to subsidize vaccination programs for the poor, thus reducing the risks from elsewhere.

The Risks of Rejecting Vaccinations:

The New York Times reports on public health concerns about the growing number of parents who refuse vaccinations for their children.

Children who are not vaccinated are unnecessarily susceptible to serious illnesses, they say, but also present a danger to children who have had their shots — the measles vaccine, for instance, is only 95 percent effective — and to those children too young to receive certain vaccines.

Measles, almost wholly eradicated in the United States through vaccines, can cause pneumonia and brain swelling, which in rare cases can lead to death. The measles outbreak here alarmed public health officials, sickened babies and sent one child to the hospital.

Every state allows medical exemptions, and most permit exemptions based on religious practices. But an increasing number of the vaccine skeptics belong to a different group — those who object to the inoculations because of their personal beliefs, often related to an unproven notion that vaccines are linked to autism and other disorders.

Twenty states, including California, Ohio and Texas, allow some kind of personal exemption, according to a tally by the Johns Hopkins University. . . .

In 1991, less than 1 percent of children in the states with personal-belief exemptions went without vaccines based on the exemption; by 2004, the most recent year for which data are available, the percentage had increased to 2.54 percent, said Saad B. Omer, an assistant scientist at the Johns Hopkins Bloomberg School of Public Health.

While nationwide over 90 percent of children old enough to receive vaccines get them, the number of exemptions worries many health officials and experts. They say that vaccines have saved countless lives, and that personal-belief exemptions are potentially dangerous and bad public policy because they are not based on sound science.

“If you have clusters of exemptions, you increase the risk of exposing everyone in the community,” said Dr. Omer, who has extensively studied disease outbreaks and vaccines.

It is the absence, or close to it, of some illnesses in the United States that keep some parents from opting for the shots. Worldwide, 242,000 children a year die from measles, but it used to be near one million. The deaths have dropped because of vaccination, a 68 percent decrease from 2000 to 2006.

“The very success of immunizations has turned out to be an Achilles’ heel,” said Dr. Mark Sawyer, a pediatrician and infectious disease specialist at Rady Children’s Hospital in San Diego. “Most of these parents have never seen measles, and don’t realize it could be a bad disease so they turn their concerns to unfounded risks. They do not perceive risk of the disease but perceive risk of the vaccine.”


Thursday, March 20, 2008

A New Pun to Complement

"erogenous zoning": sex-traterritorial jurisdiction (as in "Sex-Traterritorial Jurisdiction and the Exercise of Federal International Police Power after United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)").

"Erogenous zoning," by the way, seems to be credited to Larry Tribe; it's used in the 1988 edition of his treatise.

Pro-Business Lawyering and Punitive Damages:

Jeff Rosen's New York Times Magazine article on the Supreme Court and business reports, among other things, on Ted Olson's work with getting the Court to review punitive damages awards. ("According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.") I'm a great admirer of Olson's generally. Olson did argue the first such recent case, Bankers Life & Cas. Co. v. Crenshaw (1988), though the Court there held that all the constitutional claims other than the equal protection had been waived below. And Olson has worked a great deal to promote the anti-punitive-damages claim in public debate.

Nonetheless, at the Supreme Court most of the punitive damages work has come from other lawyers — and, more than any other lawyer, from my Mayer Brown colleague Andrew Frey (I consult for Mayer on a part-part-part-time basis). Andrew argued four such cases: Browning-Ferris Industries v. Kelco Disposal (1989), Honda Motor Co., Ltd. v. Oberg (1994), BMW v. Gore (1996), and Philip Morris USA v. Williams (2007). The last three of these he won.

There were, of course, other cases argued by other lawyers -- besides Olson in Bankers Life, Bruce Beckman argued to limit punitive damages in Pacific Mutual Life Ins. v. Haslip (1991), Sidley's Carter Phillips argued TXO Production v. Alliance Resources (1993), Howrey Simon's William Bradford Reynolds argued Cooper Industries v. Leatherman Tool Group (2001), and Skadden's Sheila Birnbaum argued State Farm v. Campbell (2003). But Frey, I think, is the one who stands out in the sheer number of cases he has argued -- nearly half of all the Court's recent constitutional punitive damages cases -- as well as is the number of his victories. I've got to say that it's pretty cool to work with people like that (though it would surely be cool to work with Ted Olson, too!).

I also thought I'd note that, excellent as Solicitor General Rex Lee was, my colleague Stephen Shapiro -- in league with Paul Bator, one of Mayer's earliest academic affiliates -- was doing business law Supreme Court cases from 1983, the year he left his Deputy Solicitor General.

Disclosure (beyond the above): I worked a very little bit on the briefing in the Philip Morris case.

Misrepresentation by JuicyCampus?

The AP reports:

New Jersey prosecutors have subpoenaed records of, a Web site that publishes anonymous, often malicious gossip about college students.

Language on the site ranges from catty to hateful and offensive. One thread, for example, on the "most overrated Princeton student" quickly dissolves into name-calling, homophobia and anti-Semitism.

JuicyCampus may be violating the state's Consumer Fraud Act by suggesting that it doesn't allow offensive material but providing no enforcement of that rule -- and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday....

The attorney general has also subpoenaed the Web site's advertising agency, Adbrite, to determine how JuicyCampus represented its operation and what advertising keywords the site requested....

Can anyone tell me, please, just what JuicyCampus has been saying that is supposedly a misrepresentation?

I agree that speakers and service providers are bound by their contracts, including contracts not to say or host certain things. They may also in some situations be bound by explicit promises they make in their advertising. But it would obviously be dangerous to have them be liable for broadly "suggesting" certain things. Imagine a state Attorney General prosecuting the New York Times for "suggesting that it" is fair and accurate, and investigating whether they've defrauded consumers because of supposed bias and error. (No, seriously, that sort of prosecution would be bad.)

Likewise, imagine an attorney general going after us for "suggesting" with our comment policy that we'd delete offensive comments, but then not doing a good enough job of deleting them. Of course, we don't say we'll delete offensive comments (we try to discourage such comments, and we may delete them, but we never say we will), but who knows what someone might think we suggest? So can anyone report on what exactly JuicyCampus said that might have been false or misleading?

Fake Hyperlinks Used in FBI Child Pornography Stings: Declan McCullagh reports that the FBI has begun using fake hyperlinks to alleged child pornography images to build cases in child porn investigations:
  The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
  Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.
  A CNET review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police. . . .
  The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "" domain name and prosecute intentional visitors. And so on.
  This is a very interesting technique, although I disagree with Declan's claim that the "implications" of it are "sweeping." The key question is whether clicking on a link constitutes probable cause to search a home. There is no "automatic" answer to this question; it is always fact-specific. See Illinois v. Gates, 462 U.S. 213 (1983) ("The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him,. . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.") So you really can't analyze the technique without knowing the facts.

  Consider the facts of the case described in Declan's story. (Warning: The facts are graphic.) An undercover FBI logged in to a now-defunct message board hosted in Russia called "Ranchi," which the agent knew to be used for distributing images of child pornography. The agent posted a message, "here is one of my favs — 4yo hc with dad (toddler, some oral, some anal) — supercute! Haven't seen her on the board before" with links to URLS that appeared to host a file named "4yosuck". The links ended up being to an FBI computer that didn't host anything criminal, but the FBI computer collected the IP addresses of the people who clicked on the link. When the IP address resolved to an ISP in the U.S., the FBI obtained the home address associated with the account and then raided the house for the computer and any child pornography stored inside the house.

  Did the government's affidavit create probable cause? I would need to look at the entire affidavit to know for sure, but just based on these basic facts I would think the case for probable cause is likely to be pretty good. I assume the FBI did not in any way broadcast their IP address or host anything on that computer, and that the link came in soon after the message was posted, so it seems likely that the only incoming web traffic request would be from a link other than from the message board. And given the context, this seems like an unlikely link that someone might come across by accident. To be sure, it's possible to imagine scenarios involving innocent links or some other break in the connection between the home and the possible evidence (unsecured wireless connections, for example), but my sense is that this would still likely create probable cause (again, a call hard to make without seeing the whole affidavit, just something that is likely).

  Nor is there a case for entrapment at trial on these facts. For a defendant to have an entrapment defense, the government needs to pressure him to commit the crime in some way. Here there was no significant pressure; the government created and advertised the opportunity but did not excessively push the defendant to click on the link.

  Does this mean that the government could send you spam with apparent links to child pornography, and that if you clicked on the link the government could raid your home? No, I don't think so. In the case of spam in an inbox, a person might click on a link by mistake or out of curiosity as to what the file may be without actually knowing or expecting it to be child porn. That seems significantly less likely in the case of a link on a message board such as the one in this case. Second, a spam e-mail is unlikely to be as clearly labeled as the image in this case. What tends to make the case for probable cause in the case Declan described is the likelihood in context that a person who clicked on the link was actually looking for images of child pornography. If you change the context, you change the strength of the case for probable cause.

  Thanks to Michael Cernovich for the link.
Uberrimae Fidei, Back in the News:

From Judge Kozinski's opinion yesterday in New Hampshire Ins. Co. v. C'Est Moi, Inc.:

We consider the doctrine that’s on everyone’s lips: uberrimae fidei.

For more on this, see here. Thanks to James S. Tyre for the pointer.

Related Posts (on one page):

  1. Uberrimae Fidei, Back in the News:
  2. Uberrimae Fidei:
Libby Loses Law License:

The Washington Post reports:

Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, was disbarred today by a District of Columbia court that ruled that his convictions last year for perjury and obstructing justice in a White House leak investigation disqualify him from practicing law.

Under the ruling by the D.C. Court of Appeals, Libby will lose his license to practice or appear in court in Washington until at least 2012. As is standard custom, he also would lose any bar membership he might hold in any other states.

Although President Bush commuted Libby's sentence, Libby was nonetheless convicted of perjury and obstruction of justice, and such convictions make the loss of his law license virtually automatic.

An Awareness Test: This is cool.
Oh, and yeah, watch out for cyclists. Thanks to The Monkey Cage for the link.
"What an Audacious Move!,"

comments an anonymous correspondent, referring to this Pioneer Press (St. Paul) headline:

Gov. Pawlenty appoints lawyer to lead Supreme Court

Watch Out for Those Sources:

Yesterday Ilya blogged about Jeff Rosen's New York Times Magazine article on the Supreme Court and business, and also linked to Eric Posner's critique. Here, I wanted to note just one factual item, small by itself but illustrative of a broader problem:

[T]he progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” ...
Now Rosen and Vladeck are generally careful scholars, but I'm pretty sure that Vladeck's quantitative analysis is not accurate. I searched for Public Citizen's business law cases in the Supreme Court since 2000, and came up with five (four if you omit the case against the Department of Transportation, though that strikes me as focused on a business-related matter). Here's the tally of the amicus briefs in each:
  1. Warner-Lambert v. Kent (forthcoming 2008)
    On Public Citizen’s side: 5 — AARP; National Conf. of State Legis. et al.; Public Justice, P.C.; American Ass’n for Justice; Kansas et al.;
    On business side: 6 — Chamber of Commerce; Generic Pharmaceutical Ass’n; U.S.; Washington Legal Found.; Product Liability Advisory Council; Pharmaceutical Research & Mfrs. of Am.
  2. Riegel v. Medtronic (2008)
    On Public Citizen’s side: 6 — Sen. Kennedy & Rep. Waxman; AARP et al.; Consumers Union; Many States; Public Health Advocacy Inst. et al.; American Ass’n for Justice et al.
    On the business’s side: 6 — Chamber of Commerce; Advanced Medical Tech. Ass’n et al.; Product Liability Advisory Council; Washington Legal Foundation; Croplife America et al.; U.S.
  3. Safeco Ins. Co. v. Burr (2007)
    On Public Citizen’s side: 3 — Many States; Nat’l Consumer Law Center et al.; Many Insurance Commissioners.
    On business side: 12 — Mortgage Ins. Cos. et al.; Farmers Ins. Co. et al.; Ford Motor Co.; U.S.; Nat’l Ass’n of Mutual Ins. Cos.; Property Casualty Ins. Ass’n; American Ins. Ass’n; Financial Servs. Roundtable et al.; Freedomworks Found.; Consumer Data Industry Ass’n; Washington Legal Found.; Trans Union.
  4. Koons Buick Pontiac GMC v. Nigh (2004)
    On Public Citizen’s side: 2 — Nat’l Ass’n of Consumer Advocates et al.; Commercial Law League.
    On business side: 3 — American Bankers Ass’n; Michigan Bankers Ass’n; Virginia Automobile Dealers’ Ass’n.
  5. Department of Transportation v. Public Citizen (2004)
    On Public Citizen’s side: 5 — American Public Health Ass’n et al.; South Cost Air Quality Management Dist.; Many States; Defenders of Wildlife et al.; Eagle Forum;
    On Department’s side, which is pro-business: 0.

So, unless I'm mistaken, one case — Safeco — fits Vladeck's description, and the remainder do not. Maybe I omitted some case, and maybe I should have omitted Department of Transportation. But unless the SCT-BRIEF database in Westlaw is wildly and systematically inaccurate, the numbers I found (even if they need to be amended in some measure) just don't bear out Vladeck's characterization.

Now Vladeck might have been recalling cases from over a decade ago, and assuming that the pattern continued as before (his assertion, recall, is about what the fight is, not what it was). Or he might have felt outnumbered because of the higher quality of the pro-business briefs (a matter I didn't investigate, but he may well be right about it) and therefore the difference might have lodged in his head as being one of quantity rather than just quality. Or he might have focused more on hostile briefs than friendly briefs at the time, and thus underestimated the number of friendly briefs in retrospect. Or perhaps he remembered right, and Rosen misunderstood some important qualifiers Vladeck mentioned, and thus quoted Vladeck out of context.

I'm sure both Rosen and Vladeck were sincerely trying to get this right. Nonetheless, unless I'm missing something big, the quote that Rosen gives — and that Rosen seems to be conveying as a true statement — is mistaken. (Rosen does start by saying this is what "the progressive antagonists of big business are understandably feeling," but in context it seems clear that he's reporting their statement of the facts as actual fact, and not just as their incorrect view.)

So the bottom line: Even experienced, thoughtful, scholarly sources can get the facts pretty badly wrong. When the facts are available to you (and here this is just a matter of a few Westlaw queries), it's better to check those facts yourself.

UPDATE: Some readers suggested that I misread Vladeck as speaking about Public Citizen lawsuits specifically, and that he was instead using "us" to mean "progressive antagonists of big business" and not "Public Citizen." This is quite possible, since he's no longer officially affiliated with Public Citizen. I read "us" to cover the group with which Vladeck had long been involved, and with which he presumably still maintains personal and emotional ties, but I might well have been mistaken.

Still, the Public Citizen cases I cited strike me as a reasonable stand-in for cases involving "progressive antagonists of big business"; and they suggest that such progressives do get lots of amicus briefs in their cases against big business, contrary to Vladeck's assertion. I also saw the same pattern when I went through 2007 and 2008 cases that seem to fit the progressive-vs.-big-business mold (setting aside employment law cases, which to my knowledge tend to involve a different sort of litigation dynamic; see, e.g., Fed Ex v. Holowecki (2008), 2 briefs for the employee and 2 for the employer):

  1. Watson v. Philip Morris (2007) had 4 for business and 5 on the consumer side (counting on business's side two briefs that were ostensibly for neither party, but that focused on a procedural issue in a way that I imagine would usually benefit business).
  2. Bell Atlantic v. Twombly (2007) had 8 for business and 2 for the consumers.
  3. Environmental Defense v. Duke Energy (2007) had 11 for business and 9 for the environmental group.
  4. Philip Morris v. Williams (2007) had 12 for business and 12 for the consumers.

So the bottom line, it seems to me, is that whether one focuses on Public Citizen's cases or includes other recent "progressive antagonists of big business" cases, one does not see the general pattern that Vladeck describes. A few cases do fit that mold, of course (Bell Atlantic and Safeco), but not the bulk of the cases I analyzed. If someone has more comprehensive data, please let me know — but so far Vladeck's assertion seems to be mistaken.

FURTHER UPDATE: California Punitive Damages (subtitled, "An Exemplary Blog," for a little bit of tort law humor) points to the now-pending Exxon Valdez punitive damages case, which generated 7 briefs for the business side and 16 briefs for the other side. (And, yes, I checked the numbers myself.)

Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:

The New York Times covers this in an interesting article (which quotes and links to this post of mine on the subject). I'm inclined to agree with Rod Smolla that the law is likely constitutional; and this argument from Ron Collins doesn't seem to me to work:

“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol [the flag],” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”

The law here doesn't bar speech that lacks proper reverence — it bars false statements of fact (and should reasonably be interpreted as barring only knowingly or recklessly false statements of fact), and the Court has held that false statements of fact generally lacks constitutional value. Nonetheless, as I argued in my earlier post, the caselaw is not entirely clear on this.

UPDATE: Surreal typo in title ("medical of honor" instead of "medal of honor") fixed. D'oh! Must have seemed pretty confusing at first glance.

Related Posts (on one page):

  1. Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
  2. More on the First Amendment and Knowing Falsehood:

Wednesday, March 19, 2008

Missouri Supreme Court Decision Allow Small Cities to Condemn Property for Development:

Tim Sandefur of the Pacific Legal Foundation has a post discussing today's Missouri Supreme Court eminent domain decision, which holds that small cities in that state have the power to condemn property for transfer to private developers (much like the takings upheld under the federal constitution in Kelo v. City of New London). The decision is based on Missouri statutory law and doesn't reach the question of whether economic development takings are forbidden by the state constitution. Sandefur and the PLF represented the property owner in the case.

I'm not sure whether the decision is correct under Missouri law. The dissenting justice makes a good point in noting that in Missouri (as in many other states) ambiguities in eminent domain law are supposed to be resolved in favor of the property owner. The government is not allowed to take property unless it can cite a statute clearly giving it the power to do so. However, it's possible that the relevant Missouri statute is so clear that the majority's decision is still correct.

I will, say, however, that this case only arose in the first place because Missouri is one of numerous states that have enacted post-Kelo "reform" laws that claim to ban economic development takings, but actually fail to do so.

Are Iraqis Telling the Truth When they Tell Pollsters They Want U.S. Troops Out?

In past posts on Cuba and Iran, I have emphasized the dangers of giving credence to pro-government statements made by citizens living under repressive regimes. People are unlikely to tell pollsters that they disagree with the government line if doing so might attract the attention of Big Brother's secret police. Unfortunately, Western reporters often ignore this problem. How many Americans would speak out against their government if doing so carried even, say, a 1% risk of being imprisoned, killed, or even just fired from your job?

I'm glad to see, however, that John Burns of the New York Times is aware of the issue and has tried to keep it in mind in his reporting on Iraq:

Opinion polls, including those commissioned by the American command, have long suggested that a majority of Iraqis would like American troops withdrawn, but another lesson to be drawn from Saddam Hussein’s years is that any attempt to measure opinion in Iraq is fatally skewed by intimidation. More often than not, people tell pollsters and reporters what they think is safe, not necessarily what they believe. My own experience, invariably, was that Iraqis I met who felt secure enough to speak with candor had an overwhelming desire to see American troops remain long enough to restore stability.

As Michael Totten points out in his comments on Burns' article, it is not just the memory of Saddam that might lead Iraqis to tell pollsters "what they think is safe" but the very real current danger of being targeted by insurgents or terrorists if they are perceived as pro-American. Perhaps there is only a small chance that insurgents will find out about a pro-American statement and punish the speaker. But, as discussed above, even a small chance of retaliation might be enough to intimidate many people into hiding their true views.

Totten also perceptively notes that Iraqis might sometimes make pro-American statements out of fear, especially if US troops are present:

Why would Iraqis say to me, an embedded American reporter, that they want Americans to get out of their country while well-armed Marines are standing nearby? Marines won’t punish Iraqi civilians for saying so, but I doubt very seriously that everyone in Iraq understands that.

That possibility should not be ignored. However, I think it is less likely than the other. After five years of experience with US troops, I suspect that many (though by no means all) Iraqis probably realize by now that they are not going to shoot civilians merely for saying something anti-American.

The bottom line: We don't really know what percentage of Iraqis want US troops out and what percentage want them to stay. In the generally safe Kurdish areas in the north, I suspect that the pro-American opinions expressed by most Kurds are probably genuine; they are not in much danger of violence from either the US or insurgents (and of course have strong historic reasons to welcome a US presence). People living in other relatively safe parts of the country are also probably more likely to express their true views. However, it's difficult for outside observers to determine what Iraqis living in the most violence-prone areas truly believe. On balance, I suspect that there are many more Iraqis hiding pro-American views out of fear of the terrorists than Iraqis hiding anti-American views out of fear of US forces (or those of the Iraqi government). However, that is at best an educated guess.

The beginning of wisdom on this issue is to at least recognize the existence of the problem, as Burns and Totten have admirably done.

UPDATE: The recent ABC poll of Iraqi opinion has a lot of interesting data, though the above caveats obviously apply. It reveals that Iraqis have become somewhat more optimistic since the surge began and that 38% of Iraqis say they want US troops to leave immediately, down from 47% in August; 59% now say that US forces should stay until stability is restored or until the Iraqi government is "stronger." About half of Iraqis (49%) now say that the US was right to invade in 2003 (compared to 50% who say it was wrong). There are still deep differences on all these issues between Sunnis, Shiites, and Kurds (With the latter expressing by far the most pro-American views).

VC March Madness:

A reminder for anyone interested that we have a VC March Madness pool over at Armchair GM. To register, you can click

Our group in the Volokh Conspiracy (or Readers of the Volokh Conspiracy) and our password is "Volokh." Be sure to capitalize the V.

The brackets will be locked down Thursday morning around 10:00 a.m., so you still have time to make your picks.

There is no entry fee. My colleague Ross Davies, Editor of the Green Bag, has generously agreed to donate both a Scalia and a Kennedy bobblehead. The winner gets first choice and the runner-up the other. In addition, to the winner I will award a Volokh Conspiracy T-shirt.

Armchair GM has set up the scoring system as a simple one: 1 point for each correct first round pick, 2 for second, 4 for third, 8 for fourth, 16 for fifth, and 32 for picking the national champion. No points for picking upsets or any other bells and whistles.

PLEASE SUBMIT ONLY ONE BRACKET PER PERSON. I hope that admonition will be sufficient, but we will be checking as well. Anyone who submits more than one bracket will be disqualified. If you have submitted more than one bracket already, please withdraw your extra ones.

Good luck!

More Info on NSA Warrantless Wiretapping Program: According to Paul Kiel, Eric Lichtblau's new book sheds new light on the program.
Lithwick on Heller:

Dahlia Lithwik writes that the case is (potentially) about "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe."

Except, of course, that there is no federalism issue in Heller, because the gun law at issue is D.C. law, which for constitutional purposes is considered part of the federal government.

Admittedly, if the Justices recognize an individual constitutional right to bear arms, this right will likely be "incorporated" against the states under the Fourteenth Amendment. There are many flaws in the incorporation doctrine as it currently exists, not least the undefended (and indefensible, in my opinion) assumption that the scope of rights protected under the original Bill of Rights and the 14th Amendment are necessarily the same, even though the meaning of such rights in public discourse may have changed dramatically between 1791 and 1868, and even though the states have a police power, and the federal government does not.

But surely it would be problematic to refuse to enforce a federal right against a part of the federal government just because the incorporation doctrine suggests that the right will have to enforced in exactly the same way against the states. If that is indeed a problem, it's a problem with incorporation (essentially invented by the liberal Warren Court, though that is a very long and complicated subject), and not the current majority's fealty to federalism.

Cheney on Public Opinion About the War in Iraq: Here's an interesting excerpt of an interview with Vice President Cheney about U.S. military involvement in Iraq:
MS. RADDITZ: Two-thirds of Americans say [the Iraq war is] not worth fighting.
MS. RADDITZ: So? You're not — you don't care what the American people think?
VICE PRES. CHENEY: No, I think you cannot be blown off course by the fluctuations in the public opinion polls.
  I realize this exchange won't change any opinions. If you support U.S. policy, it shows how wonderfully steadfast Cheney is in doing what's right even when the American people don't appreciate it. If you oppose current U.S. policy, it shows that Cheney is arrogant and perhaps delusional. Either way, I thought it was an interesting exchange.

  For more on American public opinion about the war over the last five years, Wikipedia has this page. And thanks to Phil Carter for the link.
Snyder v. Louisiana: The Supreme Court overturned a death sentence today in a 7-2 opinion written by Justice Alito, Snyder v. Louisiana. The decision is very fact-specific: It found clear error under Batson v. Kentucky for removing a black juror during jury selection. Justice Thomas dissented, joined by Justice Scalia, and accused the majority of unfairly reading the record to set aside the sentence.
Someone's Never Heard of the Constitution's "General Welfare" Clause?:

The U.S. Constitution gives Congress the power to tax and spend only for the "general welfare." The Supreme Court has essentially left it up to Congress to determine what constitutes the general welfare. ["The line must still be drawn between one welfare and another, between particular and general . . . . The discretion, however, is not confided to the courts. The discretion belongs to Congress."] Congress doesn't take this responsibility very seriously, if its members even recognize it exists, as evidenced by Senate Majority Leader Harry Reid's comment: "The Founding Fathers would be cringing to hear people talking about eliminating earmarks."

Doc Nix v. Knute Rockne:

For the first round matchup of George Mason v. Notre Dame, Rick Garnett of Mirror of Justice and Prawfsblog hereby announce the contest of the tournament--bobbleheads to the winner!

If Notre Dame wins then I will award Rick a bobblehead of the mighty Doc Nix, the fabulous conductor of the George Mason pep band (proceeds to the Edison High School Marching Band). As to the good Doc's natty attire, it was well-described in Dan Steinberg's Washington Post column this morning :

Nix was, as always, dressed in a style that could either be described as "flashy but classy" or "cut from a cloth that Elliot Spitzer's friends might recognize."

If I win, Rick will award me a Notre Dame bobblehead to be named later (watch his blogs for an update).

And for those who assume that God will give the Domers an edge, I note this additional observation from Steinberg:

At one point, campus chaplain Father Peter Nassetta appeared, in sunglasses and collar, slapping high five with the Doc and then exuberantly leading his band through Bon Jovi's "Livin on a Prayer;" Nassetta's [sic] later pointed out that the song's name has certain religious implications.

A Layman's Guide to Heller (unabridged): Thanks to Jonathan for noting my Wall Street Journal column yesterday. I was up at 4am and in line at 5am to be number 19 in the Supreme Court bar line. It ended up being sort of fun. The people around me were interesting and when the sun finally rose, I saw lots of people I knew with whom to chat. The argument was well worth attending also. I may comment on it later if I can. Here is me, taken by Gary O'Connor with his IPhone in the near dark:

Heller photo

In the meantime, here is the original version of my op-ed for the WSJ, which ran the requested length of 1200 words. They then found themselves in a space crunch due to some market stories. (What sort of paper do they think they are running?? Where are their priorities??) Consequently, they cut my essay down to 800 words. It is not easy to cut a piece by 1/3, but their editing was skillful and clever. I thought some VC readers would find it instructive to compare the the published version with the original to see how the editors accomplished this, and what they decided to leave on the cutting room floor (Note that the unpublished version is unedited and may contain glitches for the pedants in the crowd):


Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Related Posts (on one page):

  1. A Layman's Guide to Heller (unabridged):
  2. Randy Barnett on Heller in WSJ:
Law and Economics of Subprime Lending:

My new article, "The Law and Economics of Subprime Lending" is available for download on SSRN. If the past few months are any indication, I'll have to post an updated version of the article next week (and the week after...). Thanks also to VC Commenters who pointed me to some very useful sources when I posted on the foreclosure issue a few weeks back.

Here's the Abstract:


The collapse of the subprime mortgage market has led to calls for greater regulation to protect homeowners from unwittingly trapping themselves in high-cost loans that lead to foreclosure, bankruptcy, or other financial problems. Weighed against this catastrophe are the benefits that have accrued to millions of American families who have been able to become homeowners who otherwise would not have access to mortgage credit. Although the bust of the subprime mortgage market has resulted in high levels of foreclosures and even problems on Wall Street, the boom generated unprecedented levels of homeownership, especially among young, low-income, and minority borrowers, putting them on a road to economic comfort and stability. Sensible regulation of subprime lending should seek to curb abusive practices while preserving these benefits.

This article reviews the theories and evidence regarding the causes of the turmoil in the subprime market. It then turns to the question of the rising foreclosures in that market in order to understand the causes of rising foreclosures. In particular, we examine the competing models of home foreclosures that have been developed in the economics literature - the "distress" model and the "option" model. Establishing a correct model of the causes of foreclosure in the subprime market is necessary for sensible and effective policy responses to the problem. Finally, we review some of the policy initiatives that have been suggested in response to the crisis in the subprime market. Because new regulatory interventions will have costs as well as benefits, until the causes of the market‘s problems are better understood it may be that the best policy in the short-term is to do little until well-tailored regulatory approaches are available.

Five Years: Today marks five years since the beginning of the Iraq War.

Tuesday, March 18, 2008

Supreme Court Decides Interesting Facial Challenge Case: All the hubbub over Heller led many of us to miss today's very interesting First Amendment decision, Washington State Grange v. Washington State Republican Party. The Court voted 7-2 to reverse the Ninth Circuit and uphold Washington's blanket primary system against facial challenge; Justice Thomas wrote the majority opinion and Justice Scalia (joined by Kennedy) dissented. Ed Whelan has analysis over at Bench Memos.
VC March Madness Pool:

As I noted the other day, the good folks at Armchair GM have invited us to have a VC March Madness Pool over there. To register, you can click

Our group in the Volokh Conspiracy (or Readers of the Volokh Conspiracy) and our password is "Volokh."

There is no entry fee. My colleague Ross Davies, Editor of the Green Bag, has generously agreed to donate both a Scalia and a Kennedy bobblehead. The winner gets first choice and the runner-up the other. In addition, to the winner I will award a Volokh Conspiracy T-shirt.

Armchair GM has set up the scoring system as a simple one: 1 point for each correct first round pick, 2 for second, 4 for third, 8 for fourth, 16 for fifth, and 32 for picking the national champion. No points for picking upsets or any other bells and whistles.

Armchair GM says that they will be shutting down entries sometime Wednesday evening Thursday morning around 10:00 a.m.

I am told this is their first time hosting this sort of thing, so I hope it will go off without a hitch, but I hereby disclaim the risk that something will malfunction.

Good luck!


Brackets will lock about 10:00 a.m. on Thursday.


I ask all Conspirators to please enter only one bracket. Note that you will have to register with Armchair GM with a username then enter "Volokh" as the password--and be sure to capitalize it.

Could 3L Tuition Waiver Have Unintended Consequences?

Like Orin, my initial reaction to Harvard Law School's announcement of a tuition waiver for 3Ls who choose to work in public interest law for five years after graduation is a neat idea. Insofar as HLS is a trendsetter in legal education, this decision could induce other law schools to attempt similar measures (insofar as they can afford it). But could this policy have unintended consequences? UCLA economist Matthew Kahn thinks it might. Specifically, he thinks it could reduce the number of female HLS grads who become partners at large firms.

If women have a higher probability of accepting this new offer then men, and if once you pick this path you can't return to the private sector and make partner then my proof is complete that an unintended consequence of this new policy will be to reduce the number of women from HLS who get promoted to partner at the fancy NYC law firms.

Now , you may counter that these women weren't at the margin. You might say that the liberal women who want to enter public law were never at risk to prove Larry Summers wrong. You may be right but this subsidy doesn't help.

A key assumption in Kahn's prediction is that female law students, on the margin, will be more likely to accept the HLS offer than male students. Is this a reasonable assumption? For instance, is there empirical data suggesting that women are more inclined either a) to work in the public interest sector than men, or b) to seek alternatives to the traditional partner track? If not, is general research on political differences between men and women enough to support this assumption? And if Kahn's assumption is valid, if the new policy enables more women to pursue their desired career path, wouldn't that be a good thing? I'd be interested in the thoughts of those who know something about these issues.

UPDATE: More on Harvard's new policy at Law School Innovation.

Related Posts (on one page):

  1. Could 3L Tuition Waiver Have Unintended Consequences?
  2. Harvard to Waive 3L Tuition For Students in Public Interest Law for Five Years:
Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:

Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:

[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.

Unlike some of my co-conspirators I don't have the expertise to opine on the question of how far a constitutional right to bear arms should extend. However, experience in other areas of constitutional law suggests that any victory for individual rights will be a hollow one if the Court defers to the government in determining how broad the right should be.

There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection. But that symbolic value must be weighed against the danger that the public will assume that the judiciary is actually enforcing the right even when it isn't. Given the rational ignorance of most voters, there is a real danger that the public will assume that a judicial decision recognizing the existence of a right without giving it any real protection has "solved" the problem of government overreaching in this area.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am an unpaid adjunct scholar at the Cato Institute, where Levy is a senior fellow, and that he has made generous financial contributions to George Mason Law School (my employer and his alma mater). I don't think any of this actually affects my evaluation of his arguments. But I note it here for the benefit of the blogging ethics mavens out there.

Related Posts (on one page):

  1. Watch Out for Those Sources:
  2. Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:
  3. Is the Supreme Court Pro-Business, Pro-Market, or Neither?
  4. Is the Business of the Court Business?
Harvard to Waive 3L Tuition For Students in Public Interest Law for Five Years: The New York Times reports:
  Concerned by the low numbers of law students choosing careers in public service, Harvard Law School plans to waive tuition for third-year students who pledge to spend five years working either for nonprofit organizations or the government.
  The program, to be announced Tuesday, would save students more than $40,000 in tuition and follows by scant months the announcement of a sharp increase in financial aid to Harvard’s undergraduates. The law school, which already has a loan forgiveness program for students choosing public service, said it knew of no other law school offering such a tuition incentive.
  "We know that debt is a big issue," said Elena Kagan, dean of the law school. "We have tried to address that over the years with a very generous loan forgiveness program, but we started to think that we could do better."
This is a wonderful idea, I think. I'm very glad Harvard both is willing to do this and can afford it.

Related Posts (on one page):

  1. Could 3L Tuition Waiver Have Unintended Consequences?
  2. Harvard to Waive 3L Tuition For Students in Public Interest Law for Five Years:
A cartoon primer on the subprime debacle:

Here. Informative and amusing.

Second Amendment Oral Argument:

I'm very hesitant to draw inferences from oral argument, but this time I can't help it. Here's Lyle Denniston on SCOTUSblog:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.

"With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him -- once more -- the holder of the deciding vote."

Heller Argument Playing Now: At C-Span Radio.

  First comment, at 12:41: Listening to the argument for the first time, I'm somewhat puzzled by Dellinger's approach. He's treating this like a historical question of original intent or a law review article. But the Justices aren't historians or law professors, and they're clearly more interested in interpreting the Second Amendment in a practical sense as constitutional law. Dellinger is needing Souter to keep him on track (as Souter always does very ably when counsel arguing for a politically liberal result isn't catching the Court's vibe).

  Second comment, at 12:56: In the questioning of Clement, Kennedy makes perfectly clear that he agrees with the narrative of the purpose of the Second Amendment offered by gun rights proponents: The Second Amendment was enacted to limit the government's power to take away the peoples' guns given the importance of guns to self-defense and individual freedom.

  Third Comment, at 1:04: Interesting that there's so little discussion of the degree of scrutiny. Souter has to raise it when Clement's time runs out to make sure he covers it. Scalia seems to suggest that he would say there are exceptions to the right (such as machine guns, etc) but that apply strict scrutiny within the scope of the right.

  Fourth Comment, at 1:11: Roberts suggests that the Court shouldn't adopt a specific standard of scrutiny here; they can strike down the laws without needing to answer that directly. If Roberts ends up being in the majority, my guess is that he'll either write it himself or give it to Kennedy; Kennedy probably feels the same way, as his Lawrence opinion suggests.

  Fifth Comment, at 1:17: Gura isn't starting effectively: he's focusing on a very technical point, speaking very quickly, and I don't know if the Justices are even following what he's talking about. On the other hand, that may not be a bad thing; seems like he walks into his argument having five strong votes in his pocket, and he just needs to avoid losing them (which seems unlikely). Gura goes on for a few minutes until Breyer intervenes to ask a Breyeresque long hypothetical question that takes Breyer a few minutes just to ask.

  Sixth Comment, at 1:26: The respondent side of the argument is sort of boring, actually. It's mostly the libs asking questions, but they seem to know they won't get five votes so they're just asking for the sake of it rather than to try to find a majority view for their side. (Or maybe I'm just sufficiently convinced of that that I'm paying less attention — always a possibility.) One big moment is when Kennedy comes out and says he thinks Miller is "deficient" — he notes that Gura is being carefully consistent with it, but suggests that there's no need to be.

  Seventh Comment, at 1:49: Near the end of Gura's argument, they're dickering over degrees of scrutiny. But my sense is that it won't matter: Roberts presumably either writes it himself or gives it to Kennedy, and the Court won't need to answer degrees of scrutiny to affirm the DC Circuit.

  Eighth Comment, at 1:52: Dellinger in rebuttal gives a shout out to the 17th Street Hardware store, presumably the one just south of R. Great hardware store.

  Ninth Comment, at 2:01: As Dellinger finishes up, I tend to think that Heller is an example of advocates not really mattering in the biggest cases. This argument isn't Dellinger v. Clement v. Gura; it's Roberts v. Souter v. Kennedy v. Scalia v. Breyer. The Justices have thought through these issues for weeks if not months, and they know pretty much where they come out; none of the advocates seem to be getting much traction, but that's because the Justices are totally up to speed. I think this happens relatively often in the Supreme Court's biggest oral arguments, actually. By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.
Randy Barnett on Heller in WSJ:

Our own Randy Barnett has an op-ed in today's WSJ, "Gun-Rights Showdown," discussing today's oral argument in D.C. v. Heller. Here's how it begins:

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several D.C. citizens contending that the ban on the possession of operable firearms inside one's home violates the Second Amendment. The Circuit Court of Appeals for D.C. agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions. The majority and dissenting opinions in this case will be taught in law schools for years to come.

Read the whole thing.

Related Posts (on one page):

  1. A Layman's Guide to Heller (unabridged):
  2. Randy Barnett on Heller in WSJ:
Initial Report on Heller Argument: Over at Scotusblog, Tom Goldstein has this very preliminary take on the just-completed Heller argument:
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the "operative clause" of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense. If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision. Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service. But at argument, at least, none of the Court's more conservative members expressed much interest in that approach, and Justice Kennedy's view that the operative clause is not directed at militia service would seem not to point in that direction.
More at Scotusblog, naturally, including Lyle Denniston's initial take posted just five minutes ago:
The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a strong defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect.
  Perhaps Heller will be another Lawrence, with Miller today's Bowers? Stay tuned.
Is the Supreme Court Pro-Business, Pro-Market, or Neither?

In his much-discussed New York Times Magazine article, Jeffrey Rosen claims that the Supreme Court has become "pro-business." Eric Posner has already dissected much of the very weak evidence on which Rosen's thesis is based. I would add that Rosen's thesis is undermined by his conflation of being "pro-business" with being pro-free market, and by the Court's reluctance to provide even minimal protection for constitutional property rights and economic liberties.

I. Pro-Market vs. Pro-Business.

Rosen, like all too many other analysts conflates being "pro-business" with being pro-free market. In reality, however, business interests often favor government intervention. For example, they are happy to support regulations that hobble their competitors, provide them with subsidies, protect them from foreign competition, and so on. Politically influential corporations such as General Motors also benefit when the government condemns property that they covet and transfers it to them. As I explained in this post, libertarian and conservative public interest law firms found themselves unable to pursue a pro-market litigation strategy until they reduced their dependence on corporate support - in part precisely because business interests often support government intervention. Thus, even if Rosen is correct in claiming that the justices reflect "an emerging spirit of agreement among liberal and conservative elites about the value of free markets," that would not necessarily be a "pro-business" agenda. It benefits some businesses, but also harms the interests of others.

In reality, however, there isn't much evidence of a pro-market tilt on the Court either. Much, of course, depends on the baseline you apply. If you believe that property rights and economic liberties deserve virtually no judicial protection at all, than even the modest degree of protection they receive from the current Court will seem like too much. That said, I think the evidence suggests that the Court is very far from being pro-market. Constitutional property rights remain mired in a "second class" status relative to other individual rights - a status reaffirmed in several recent decisions. Judicial protection for other economic liberties is even weaker than that.

II. The Continuing Second Class Status of Property Rights.

In the area of property rights, the Court held in Kelo that the government can condemn virtually any property it sees fit and transfer it to another private party. Contrary to Rosen's claims that the Court is more pro-market than public opinion, in this case public opinion overwhelmingly (80% plus) favored greater protection for property rights than the Court. Although the Court majority agrees that private property can only be condemned for a "public use," it leaves the definition of "public use" almost entirely up to the discretion of the very same government authorities who wanted to condemn the property in the first place. With the possible exception of the Second Amendment, no other part of the Bill of Rights has been so completely negated by wholesale judicial deference to the government.

In recent years, the Court has also made it easier for government to severely restrict property owners rights without having its actions be declared a taking under the Fifth Amendment and thereby without having to pay the "just compensation" the Amendment requires. In the 2002 Tahoe-Sierra case (won by John Roberts as the lawyer for the government) the Court undermined much of the limited increases in protection against "regulatory takings" that it had extended to property owners in the 1980s and 90s (Richard Epstein provides a good discussion of the case's impact here). Most recently, in Wilkie v. Robbins, the Court held that, even in cases where there is a clear violation of constitutional property rights, the victims are not entitled to remedies that are routinely available for violations of other individual rights protected by the Bill of Rights.

III. The Third Class Status of Economic Liberties.

As limited as is the Court's solicitude for property rights, it extends even less protection to economic liberties. With the possible exception of Justice Thomas, all of the justices support the view that "economic" regulations require only minimal "rational basis" scrutiny that in practice leads to judicial endorsement of even the most blatant special interest manipulations that restrict individual liberty in order to benefit politically powerful interest groups. This despite growing evidence compiled by co-blogger David Bernstein and other scholars indicating that the Fourteenth Amendment was intended to provide far more than minimal protection for economic freedom. Certainly, the Court's unwillingness to provide even a modest degree of protection for economic liberties contrasts sharply with its solicitude for "noneconomic" unemurated rights, such as the right to sexual autonomy, abortion rights, and the right to marry (which is protected even in the case of death row inmates).

Rosen may be right in so far as today's Court gives property rights slightly more protection than did its predecessors between the late 1930s and the 1980s. That period, however, was an extreme anomaly in which judicial protection for property rights was far weaker than at any other time in American history. As James Ely shows in his excellent history, The Guardian of Every Other Right, judicial protection for property was much stronger during the Founding era and most of the 19th and early 20th century. And, though property rights gained some modest ground in the 1980s and 90s, Supreme Court protection for other economic freedoms hasn't advanced beyond its post-New Deal nadir.

"Pass the Torch": Over at Simple Justice, Scott Greenfield has a terrific post about growing older and staying fresh, ambitious, and engaged. Here's a taste:
  For you generation Y's, or Q's or whatever they call twenty-somethings today, I have a surprise for you. In your mind, you never really get older than about 30. Sure, your eyes don't work as well, and parts of your body hurt in the morning that you never before realized you had, and you can't remember your kids names. But your brain tells you that you're still alive and vital. You try to lift things that will throw your back out for weeks because your brain says you still can.
  There are rights of passage that propel us to move forward. Remember that first kiss? It was electric. You want to feel that charge run through your body again. No, not by cheating on your wife, but by doing something you've never done before. There are a million challenges out there that I have yet to meet and overcome. I want to feel the energy as I stare them down, and the exhilaration as I prove that I can still do anything I set my mind to.
  My mind will always have the accumulated knowledge and experience gained over 50 years, and I can now see how this can be applied to so many new and different things that would not have interested me 25 years ago. So many things are far more fascinating to me today then they were years ago, when my focus was too narrow and my interested muddled. Back then, education was something to put up with as I pushed forward to whatever I would ultimately be. Today, it is like food to a starving man. Why didn't I learn so much more when it was all there for me to partake?
  I'm ready to do it all again, just like everyone else my age. Not a do-over, as I don't want to be 21 again, foolish and ignorant, too full of my self-potential to appreciate the joys of youth and how little I understood about the world. No, I want to do it again knowing everything I know now.

Monday, March 17, 2008

David Mamet - Ex-Liberal:

Famed playwright (Sexual Perversity in Chicago, Glengarry Glen Ross, Speed-the-Plow, Oleanna) and screenwriter (The Verdict, House of Games, The Verdict) David Mamet writes in the Village Voice that he is now an "ex-Liberal."

I took the liberal view for many decades, but I believe I have changed my mind.

As a child of the '60s, I accepted as an article of faith that government is corrupt, that business is exploitative, and that people are generally good at heart.

These cherished precepts had, over the years, become ingrained as increasingly impracticable prejudices. Why do I say impracticable? Because although I still held these beliefs, I no longer applied them in my life. . . .

I wondered, how could I have spent decades thinking that I thought everything was always wrong at the same time that I thought I thought that people were basically good at heart? Which was it? I began to question what I actually thought and found that I do not think that people are basically good at heart; indeed, that view of human nature has both prompted and informed my writing for the last 40 years. I think that people, in circumstances of stress, can behave like swine, and that this, indeed, is not only a fit subject, but the only subject, of drama.

I'd observed that lust, greed, envy, sloth, and their pals are giving the world a good run for its money, but that nonetheless, people in general seem to get from day to day; and that we in the United States get from day to day under rather wonderful and privileged circumstances—that we are not and never have been the villains that some of the world and some of our citizens make us out to be, but that we are a confection of normal (greedy, lustful, duplicitous, corrupt, inspired—in short, human) individuals living under a spectacularly effective compact called the Constitution, and lucky to get it. . . .

I began reading not only the economics of Thomas Sowell (our greatest contemporary philosopher) but Milton Friedman, Paul Johnson, and Shelby Steele, and a host of conservative writers, and found that I agreed with them: a free-market understanding of the world meshes more perfectly with my experience than that idealistic vision I called liberalism.

David Mamet, long one of my favorite living playwrights, thinks Thomas Sowell is "out greatest contemporary philosopher. Go figure.

Yet Another Post on the Heller Line: C'mon, I know you're curious. This time, some pictures, and a report from a commenter that by 7pm the line was 60+ long -- with the last folks in line preparing to stay all night just to see a few minutes of the argument in the rotating line.
Is the Business of the Court Business?

Sunday's New York Times Magazine featured an article by Jeffrey Rosen, "Supreme Court Inc." suggesting that there has been an "ideological sea change" on the Supreme Court in favor of business interests over the last several years.

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

According to Rosen, this change reflects an "elite consensus," but not necessarily the views of the nation's populace. This is an interesting argument for the author of a book on the Supreme Court called The Most Democratic Branch. It is also a bit curious to suggest that the Court is out of touch with the American public because it lacks Justices willing to "bend the law" in favor of interest groups that were unable to prevail through the democratic process.

Rosen's article has prompted substantial comment, including interesting posts by Jack Balkin and Larry Ribstein.

Rosen's article is interesting, but is it really all that accurate or insightful? Before answering that question, read Eric Posner's deconstruction of the Rosen's piece at Slate's new legal blog Convictions. After surveying the evidence Rosen marshals to make his case, Posner concludes:

the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration. To preserve the idea that its jurisprudence is "biased" in favor of business, rather than just sensible or reasonable or within the range of colorable legal argument or for that matter a long overdue reaction to its previous anti-business "bias," Rosen argues that maybe there are people out there who really are populist; he seems to think that the Supreme Court and elite, bipartisan opinion that (he acknowledges) it reflects are "biased" in favor of business because this populist sentiment no longer plays a role in its opinions. "Unbiased," in this view, is populist. But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise. Even if it were, it would be puzzling to argue that the Supreme Court should hold its finger to the wind and start ruling against businesses--indeed, should have started years ago, when this "pro-business" trend Rosen decries began--and if it doesn't, that must be because of "bias." The article boils down to the claim that the Supreme Court is biased in favor of business (that is, is excessivly pro-market) because it failed to anticipate, and today shows no inclination to heed, marginal populist sentiment that has made no inroad on electoral politics.

Thoughts on the Oral Argument in Rothgery v. Gillespie County: I attended this morning's oral argument in Rothgery v. Gillespie County, an important case on the right to counsel, and I wanted to offer some thoughts and impressions of the argument. (To get up to speed, you can read the argument transcript here.)

  My overall sense of the argument was that the Justices seemed less concerned with the traditional Sixth Amendment inquiry into whether the criminal case against the defendant had truly begun than the somewhat different question of the state's power to detain suspects pre-trial — and the role of counsel in determining when that power should be exercised. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court had been pretty unconcerned about the defendant who might be stuck in prison unable to make bail before charges were formally brought. According to the Court, the question of "whether there is probable cause for detaining the arrested person pending further proceedings" was a simple matter that "can be determined reliably without an adversary hearing." To the Gerstein court, this was no big deal:
The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination, but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some case. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.

Because of its limited function and its nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel.
  The Court today seemed to look at the issue very differently. The Justices didn't want to overturn Gerstein, but they seemed very worried about the possibility that people could be detained pending trial but then not charged, and that they might be stuck in the interim even though no formal charges had been filed, without a lawyer to challenge the detention. Justice Scalia was particularly aggressive on the issue, asking the lawyer for the county what possible authority the state had for detaining a person if they weren't formally charged with a crime yet (at which point the Sixth Amendment right would attach).

  The tough question was, if you want to stop this, how? Justice Souter tried to lead the way, suggesting that there was a right to counsel within a reasonable time after the Gerstein probable cause hearing. This would lead to a somewhat weird result: A defendant wouldn't have a right to counsel to determine if he should be detained under Gerstein, but he would have a right to counsel soon after he was detained to determine if he had been detained properly. Justice Scalia suggested that maybe this could be dealt with by saying that the right attached but no appointment of counsel was needed until a critical stage of the case was implicated.

  Another lurking question in the background was the effect of the Argersinger v. Hamlin line of cases, which hold that a defendant only gets a Sixth Amendment right to counsel if he is going to be imprisoned. It's not exactly clear how to reconcile these cases with the rules the Justices were contemplating at argument. Justice Breyer expressed the view that detention pre-trial was the equivalent of imprisonment under Argersinger. Perhaps; certainly at some level detention is detention is detention. At the same time, from that perspective Gerstein looks pretty odd. If detention is detention is detention, why did the Gerstein Court conclude that the initial detention hearing was no big deal and that no lawyer was needed? And what to do with the facts of this case, as Rothgery was told that he had a right to a lawyer if he couldn't make bail but had to waive the right if he was making bail? Is bail the Argersinger equivalent of probation? Or maybe a suspended sentence? It's not really clear. Did Rothgery waive any right to counsel he might have had by agreeing to be let out on bail?

  In the end, I suspect that this is the kind of case that will take a while for the Justices to work through before a majority view coalesces. Stay tuned.
The Best Chart For Heller: There are a bunch of reasons why the Heller case presents the best opportunity in a long, long time for the Supreme Court to adopt a strong individual rights view of the Second Amendment. There's the recent change in the composition of the Court. There's the recent pro-individual rights scholarship. Both are tremendously important. But I wonder if we should also note the influence of this chart:

(Source: U.S. Dept. of Justice)

  Of course, I'm not suggesting that this chart should influence the Court. But I would guess that the reality it represents -- the fact that violent crime rates have plummeted in the last few years -- has helped create a more friendly audience for Heller's arguments.
Original Sources Underlying the Second Amendment

With Heller about to be argued, a lot of folks are debating what the Second Amendment means. But what does the historical record really show?

A cool (and useful) website is ConSource, which is a free, fully-indexed online library of constitutional sources. Apparently the lawyers (on both sides) have been using ConSource to track down historical references.

The website not only has an image of the Constitution posted on it, but also lots of useful related sources (e.g., the Federalist Papers and ratification debates).

Here are the gun-related documents on ConSource related to the Second Amendment:

The Second Amendment

Federalist 4

Federalist 29

The Dissent of the Minority of thePennsylvania Convention (Dec. 18, 1787)

Virginia Ratification Debates

Massachusetts Ratification Debates

Pennsylvania Ratification Debates

Madison's Resolution for Amendments to the Constitution

House Committee Report

Amendments Proposed by the Virginia Convention (June 27, 1789)

Articles of Amendments as agreed to by the Senate (Sept. 14, 1789)

Amendments to the Constitution (Sept. 28, 1789)

House Debates (Aug. 17, 1789)

House Debates (Aug. 21, 1789)

There are also some interesting secondary sources, specifically letters of the Framers:

John Randolph to St. George Tucker (Sept. 11, 1789)

George Mason to John Lamb (June 9, 1788)

Jeremy Belknap to Paine Wingate (May 29, 1789)

Fisher Ames to Thomas Dwight (June 11, 1789)

Fisher Ames to George R. Minot (June 12, 1789)

I can't say I've made a fully study of every bit of evidence. But there is lots of ammunition for the individual rights proponents in here.

Funny Name for A Law School Parody Show: Harry "Issue" Spotter and the Goblet of Breyer.
A Right of the State to Preemptive Self-Defense?

My colleague Amos Guiora has written yet another interesting paper, this one regarding the circumstances in which a state can take preemptive or anticipatory actions against a non-state actor. Contrary to the limitations that some international law scholars seek to impose, Guiora contends that a state should be allowed to take preemptive action to protect itself against such actors (i.e., terrorists) -- provided its has sufficiently strong operational intelligence. In this country, to ensure that the Executive truly has such intelligence, Guiora suggests FISA court review.

Don't Rely Too Much on Common Sense:

The Tenth Circuit just reversed the insider trading conviction of Joseph Nacchio, former CEO of Qwest. (Congratulations to my Mayer Brown colleague Andy Schapiro, who cofiled an amicus brief on behalf of the National Association of Criminal Defense Lawyers supporting reversal.)

The reversal stemmed from the trial judge's exclusion of economic expert evidence. Among other things, the trial judge concluded that the evidence would "invit[e] the jurors to abandon their own common sense and common experience and succumb to this expert's credential." The panel majority responded:

While economic analysis sometimes asks jurors to "abandon their own common sense," App. 3920, that is not a reason to deem expert testimony inadmissible. Armchair economics is not the way to decide complex securities cases.

Absolutely right.

End of the Line for the Heller Line?: The Legal Times blog has a story on the public line for the Heller argument. It reports that there were already 32 people in the public line by 1:45 pm, suggesting that the line probably filled up sometime this afternoon. Thanks to Howard for the link.
"Neither Down nor Feathers":

A friendly e-mail I saw wishing that Alan Gura — the lawyer arguing D.C. v. Heller on Heller's side — "break a leg" reminded me of a similar Russian phrase, which my family always used to wish me luck: "Ни пуха, ни пера," pronounced "Nee pookha, nee piera," which literally means "Neither down nor feathers."

The explanation I heard was that it was considered bad luck to wish for good luck, so you'd wish for bad luck instead; and when a hunter went hunting for fowl, back luck would be if he came back with no birds (hence the absence of down and feathers). I've also seen the claim that hunters used "pookh" to refer to fur rather than down, so that the hunter would get a wish that he come back with neither mammals nor birds, a plausible explanation but not one my grandmother told me.

The response was also a formula: "К чёрту," which literally means "to the devil," which is to say "go to hell." So, Alan, Ни пуха, ни пера.

Slate Launches "Convictions" Law Blog: Today has launched a law blog, Convictions. It's a group blog with a terrific set of people:
Ben Wittes, David Barron, Deb Pearlstein, Adam White, Dawn Johnson, Doug Kmiec, Diane Amann, Nancy Gertner, Jack Balkin, Kenji Yoshino, Marty Lederman, Orin Kerr, Patrick Keefe, Eric Posner, Richard Ford, Tim Wu, Viet Dinh, Walter Dellinger, Dahlia Lithwick, Emily Bazelon, Phil Carter, and David Feige
A number of the bloggers in the group already blog elsewhere, myself included; my understanding is that we'll all continue to blog at our home blogs in addition to the Slate blog, at least for now. In the meantime, check it out.
Another Update on the Heller Line: I was at the Supreme Court this morning to hear the Rothgery argument, and I checked out the line for Heller while I was there. Or rather, the line checked me out: When I was walking up the Court steps at around 10:50 am, I heard a person yell "Professor Kerr!," and found two GW Law students, Tyson Horrocks and Ryan Haws, parked out in lawn chairs reading from casebooks while waiting in line. They told me that they arrived at about 11:30 last night, and I think they were the #3 and #4 persons in line. By 10:50am, when I arrived to hear the Rothgery argument, I think they were still the end of the line.

  By about 12:20, when the argument in Rothgery was over, I checked the line again. The line had expanded to about 12-15 people, most of them students and about half them law students. Some from GW, some from Georgetown, some from Harvard. As you might expect, most or all were strong Second Amendment supporters. Morale seemed high, at least at 12:30 or so, no doubt helped by the sun that was out and was warming up the plaza outside the Court. Tyson and Ryan were pretty well-prepared, with lots of food with them and lots of reading, too. (Bonus points for Ryan -- when I checked in after the argument, he was reading from a certain Computer Crime Law casebook.) Reinforcements were expected tonight in the form of pizza delivered by Mrs. Horrocks & Haws; given that the temperature tonight will get down to about 35 degrees, I'm sure some hot pizza will be much appreciated.

  Anyway, I'll blog about the Rothgery argument shortly; in the meantime, I wanted to get out the important latest scoop on the Heller line.
Second Amendment Coverage Tomorrow on SCOTUSblog:

It will be at, and I expect a lot of great stuff. For more details, see here.

10% of All X's Account for 25% of All Y's:

I often see these sorts of statistics that purport to show that some fraction of the X's are disproportionately prone to event Y. One paper I read, for instance, reported that 10% of all police officers in a department account for 25% of all abuse complaints, and used that as evidence for the proposition that some police officers are especially prone to misbehavior. One can imagine similar claims when, say, 10% of all holes on a golf course account for 25% of all hole-in-ones, or 10% of all slot machines account for 25% of all jackpots, and so on.

The trouble is that this data point, standing alone, is entirely consistent with the X's being equally prone to Y. Even if, for instance, all the holes on a golf course are equally difficult (or all the police officers equally prone to abuse complaints), and hole-in-ones (or complaints) are entirely randomly distributed across all holes (or officers), one can easily see the 10%/25% distribution, or 20%/80% distribution, or whatever else.

Consider a boundary case: Say that each police officer has a 10% chance of having a complaint this year. Then, on average 10% of all officers will have 100% of this year's complaints. Likewise, say that each police officer has a 1% chance of having a complaint each year for 10 years, and the probabilities are independent from year to year (since complaints are entirely random, and all the officers are equally prone to them). Then, on average 9.5% (1 - 0.99^10) of all police officers will have 100% of the complaints over the 10 years, since 0.99^10 of the officers will have no complaints.

Or consider a less boundary case, where the math is still easily intuitive. Say that you have 100 honest coins, each 50% likely to turn up heads and tails. You toss each coin twice. On average,

  • 25 of the coins will come up heads twice, accounting for 50 heads.

  • 50 of the coins will come up heads once and tails once, accounting for 50 heads.

  • 25 of the coins will come up tails twice, accounting for no heads.

This means that 25% of the coins account for 50% of the heads — but because of randomness, not because some particular coins are more likely to turn up heads than others.

Likewise, we see the same in slightly more complicated models. Say that each police officer has a 10% chance of having a complaint each year, and we're looking at results over 10 years. Then 7% of all officers will have 3 or more complaints (that's SUM (10-choose-i x 0.1^i x 0.9^(10-i)) as i goes from 3 to 10). But those 7% will account for 22.5% of all complaints (that's SUM (10-choose-i x 0.1^i x 0.9^(10-i) x i) as i goes from 3 to 10). And again this is so even though each officer is equally likely to get a complaint in any year.

Now of course it seems very likely that in fact some officers are more prone to complaints than others. My point is simply that this conclusion can't flow from our observation of the 10%/25% disparity, or 7%/22.5% disparity, or even a 20%/80% disparity. We can reasonably believe it for other reasons (such as our knowledge of human nature), but not because of that disparity, because that disparity is entirely consistent with a model in which all officers are equally prone to complaints.

If you have more data, that data can indeed support the disproportionate-propensity conclusion. For instance if nearly the same group of officers lead the complaint tallies each year (or nearly the same group of slot machines leads the payouts two months running), that's generally not consistent with the random model I describe. Likewise, if you have more statistics of some other sort — for instance, if you know what the complaint rate per officer is, and can look at that together with the "X% of all officers yield Y% of the complaints" numbers — that too could be inconsistent with a random distribution.

But often we hear just a "10% of all X's account for 25% of all Y's" report, or some such, and are asked to infer from there that those 10% have a disproportionate propensity to Y. And that inference is not sound, because these numbers can easily be reached even if everyone's propensity is equal.

UPDATE: (1) Some commenters suggested this phenomenon "depends on the sample size; if the sample size is large enough, the inference is sound." That's not quite right, I think.

The sample size in the sense of the number of police officers / golf holes / coins does not affect the result. I could give my coin example, where 25% of all coins yield 50% of all heads, with a million tosses.

The sample size in the sense of the number of intervals during which an event can happen (e.g., the length of time the officers are on the force, if in the model there's a certain probability of a complaint each year) does affect the result. But if the probability per interval is low enough, we can see this result even when there are many intervals.

Say, for instance, that there's a 1% chance of a complaint per month for each officer, and we look at 240 months (representing an average police career of 20 years). Then even when all officers have precisely the same propensity to draw a complaint, 9.5% of all officers would have 5 or more complaints, and would account for over 21.5% of all complaints. So a 9.5%/21.5% split would be consistent with all officers having an identical propensity to generate complaints, even with a "sample size" of 240 intervals. If the monthly complaint probability was 0.005, then 12% of all officers would account for over 33% of all complaints.

(2) More broadly, this isn't a matter of "sample size" in the sense that we'd use the term when discussing significance testing, and talking about "statistical significance" wouldn't be that helpful, I think. If you have a lot of data points, you can determine whether some difference between two sets of results over those data points is statistically significant. But here I'm talking about people's drawing inferences from one piece of (aggregated) data -- 10% of all X's account for 25% of all Y's. Statistical significance testing is not apt here.

"Real Men of Law School":

Paul Caron (TaxProf Blog) passes along some very amusing videos from GW.

Second Amendment Sniping:

Linda Greenhouse reports on the "sniping" within the Administration over the Solicitor General's brief in D.C. v. Heller.

Mr. Clement’s brief embraces the individual-rights position, which has been administration policy since 2001 when John Ashcroft, then the attorney general, first declared it in a public letter to the National Rifle Association. But the brief does not take the next step and ask the justices to declare, as the federal appeals court here did a year ago, that the District of Columbia law is unconstitutional.

Not that the solicitor general’s brief finds the law to be constitutional, or even desirable. Far from it: the brief offers a road map for finding the law unconstitutional, but by a different route from the one the appeals court took. The distinction may seem almost picayune, but it is a measure of the passions engendered by anything to do with guns that Mr. Clement’s approach is evidently being seen in some administration circles as close to a betrayal.

The brief argues that in striking down the District of Columbia’s law, the United States Court of Appeals for the District of Columbia Circuit took too “categorical” an approach, one that threatens the constitutionality of federal gun laws, like the current ban on machine guns. Mr. Clement asks the justices to vacate the decision and send the case back to the appeals court for a more nuanced appraisal of the issue.

This was a fairly standard performance for a solicitor general, who has a statutory obligation to defend acts of Congress. It is routine for any solicitor general to try to steer the court away from deciding cases in a way that could harm federal interests in future cases.

But Vice President Dick Cheney was nonetheless so provoked by Mr. Clement’s approach that last month he took the highly unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asks the Supreme Court to declare the District of Columbia law “unconstitutional per se.”

Related Posts (on one page):

  1. Second Amendment Sniping:
  2. Administration Split on Gun Rights?
Heller Line Update: I predicted last week that the oral argument line for DC v. Heller would fill up very early, perhaps earlier than any case in Supreme Court history. Jan Crawford Greenburg reports that the line started this afternoon at 5:35 pm -- about 40 hours before the argument. (Thanks to Howard for the link.)

Sunday, March 16, 2008

Two Thoughts on Rothgery: Having read more of the briefs in Rothgery v. Gillespie County, the Sixth Amendment right-to-counsel case I blogged about below, I have two quick thoughts.

  First, it seems to me that the case is made much more difficult by the diversity of state practices. Every state system has a different procedure for bringing charges against suspects, and states often use common terminology in different ways. (The best example of the latter being the word "arraignment," which different states use in different ways.) Given that, it's often hard to know what to make of the Court's Sixth Amendment precedents; those precedents often do not explain clearly what exactly the state procedure involved. Similarly, it's hard to know exactly what to make of the Texas "magistration" hearing at issue in this case. The lower court did not have a hearing on the proceeding's significance.

  The Supreme Court might get around this by trying to define the Sixth Amendment right by reference to something else the Constitution requires, such as the Gerstein v. Pugh probable cause hearing required after arrests under the Fourth Amendment. But otherwise it may be hard for the Court to come down with a simple rule. In light of that, I wonder if the Court will end up sending the case back for more development on the nature of the Texas "magistration" hearing Rothgery received; that may make a difference, and I understand the record to be unclear on the precise nature of the proceeding.

  A second thought on Rothgery really isn't about the case itself, but rather constitutional methodology surrounding it: Am I right that no one is an originalist when it comes to the right to counsel? If I understand the history of the right to counsel, it was originally understood to mean that defense attorneys are permitted if a defendant had hired one, not that the government would provide one for him. The common law practice in the 16th and 17th centuries had banned defense attorneys in criminal cases; defendants were not permitted to use them, as it was feared that the defense attorneys would distract the jury and get in the way. If I recall my history correctly, Parliament had established a right for an attorney to appear and argue on a defendant's behalf in the late 17th century in treason cases, and that had gradually spread in the 18th century to other criminal cases. The first Congress did not provide a lawyer for defendants beyond capital cases, further suggesting that the Constitutional right to counsel was originally understood to mean only a right to have an attorney appear on a defendant's behalf if the defendant had hired the attorney on his own. See, e.g., W. Beaney, The Right to Counsel in American Courts (1955).

  I'm curious: Do self-described originalists think that we should go back to this interpretation? I looked around just a bit, but I couldn't find much on originalist interpretations of the right to counsel.

Related Posts (on one page):

  1. Two Thoughts on Rothgery:
  2. When Does the Right to Counsel Attach?:
Bear Stearns Collapses:

JP Morgan is buying the company, recently valued at well over $100 a share, and selling for over $50 as recently as last Thursday, for $2 a share. Bear Stearns is a victim of the subprime debacle. What's next? Perhaps the collapse of large hedge funds that leveraged their investments in mortgage-backed securities? A similar collapse of a major international bank like Citicorp?

I've said it before (e.g.), and I'll say it again. I simply didn't, and still don't, understand how anyone could have thought that giving people, often people with terrible credit histories, mortgages with no money down and often with no documentation of income--and after an unprecedented increase in prices left the market especially vulnerable to a downturn in prices--was a good idea. Maybe if I had studied for an MBA in Harvard and worked my way up to the top of the investment banking industry it would somehow have made sense to me.

When Does the Right to Counsel Attach?: Tomorrow the Supreme Court will be holding oral argument in Rothgery v. Gillespie County (briefs here), a very interesting case on when an indigent criminal defendant gets a constitutional right to have an attorney appointed to represent him.

  Rothgery was arrested, held overnight, given a probable cause hearing, and then released on bail while the government decided whether to bring formal charges. Months later, he was indicted and given counsel; his lawyer got the charges dismissed because it turned out that Rothgery wasn't in fact a "felon" for purposes of a felon in possession law.

  Rothgery then brought a civil suit arguing that his constitutional rights had been violated when he was not provided counsel at the earlier stage. The Court has never clearly stated exactly when the constitutional right to counsel attaches in this sort of setting, mostly because Sixth Amendment cases typically arise in the context of a motion to suppress the defendant's statements and the defendant almost never makes statements at these early proceedings.

  I've just started reading the briefs, so I don't yet know where I come out. More soon, I hope.

Related Posts (on one page):

  1. Two Thoughts on Rothgery:
  2. When Does the Right to Counsel Attach?:
Polls on handgun bans:

The Sunday Washington Post has 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.

Spitzer Song Lyric: Via reader John Burgess comes this clever rewrite of "Love Potion No. 9."
I took my troubles down to old D.C.
You know I came here straight from Albany
Told about place where my credit is just fine
That’s when they called me Love Client Number Nine.

I told her gov’ner is what I’m called by chicks
I got elected back in 2006
She looked at my wallet and said I’d be just fine
She said what I’ll call you is Love Client Number Nine
The rest is here.
Sunday Song Lyric: I heard "Our Love Is Here to Stay" playing last night at dinner, and since it's been quite some time since I posted a Gershwin lyric, I figured this one was as good as any for this week. So here's the intro to "Our Love Is Here to Stay" by George Gershwin (music) and Ira Gershwin (lyrics).
It's very clear
Our love is here to stay
Not for a year, but forever and a day

The radio
And the telephone
And the movies that we know
May just be passing fancies and in time may go

But oh my dear
Our love is here to stay
There are many memorable performances of the song. Here is one by Ella.