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Saturday, August 16, 2008
For Those Following the DC-Area Housing Market:
A very interesting debate in the comments section of the Northern Virginia Housing Bubble Fallout Blog over whether Arlington prices, which have held up reasonably well post-bubble, are likely to fall due to the "substitution effect". With housing prices having plummeted in the outer suburbs, will home buyers, for example, decide to buy a 200K home in Prince William County instead of a 700K home in close-in Arlington?
My best guess, despite being an Arlington homeowner, is that Arlington is due for a fall. Arlington has many advantages, and the disproportionate rise in Arlington prices has some legitimate reasons, including how much nicer and safer DC has become, reasonably wise development policies in Arlington, and the general trend toward Yuppies wanting a more urban experience. But Arlington also has uneven schools, older housing stock, small lots, very high prices, and nasty traffic problems for those who need to commute west (like my brother-in-law, who spent an hour each way driving from Courthouse to Fairfax City each day, a fifteen to twenty-minute drive with no traffic), where the high-tech companies are located. At some point, marginal buyers will prefer neighborhoods in the outer burbs where prices are at 2002 levels (down 50% or so from the peak) to neighborhoods in Arlington where prices are still at 2004 levels (down 10-15% from the peak).
UPDATE: A major reason prices have fallen so hard in the outer 'burbs, but not Arlington, is the much great incidence of foreclosures in the former. Foreclosures, and for that matter short sales, have dragged down the prices of "normal" sales, creating what may turn out to be short-lived bargains. If I were buying for investment now, it strikes me that an 80K townhouse in Manassas or Dumfries that could be rented for $1,200 a month is a much better deal than an $800K house in Arlington that rents for $3,200.
Friday, August 15, 2008
Supply and Demand Are Just Like That, I Guess:
Here's the lead story today in the Wilmington (DE) News Journal, the local paper where I grew up: GAS PRICES DIP AS DRIVERS CONSERVE: Analysts Say More Relief At the Pump Could Renew Demand — Meaning A Rise in Cost Remember, kids, supply and demand are not just a good idea: They're the law.
Apropos Unusual Names, and the "Jewess" Thread:
Check out former Houston city councilman and Mayor pro tem Jew Don Boney, Jr.
My guess is that the "Jr." points to part of the reason for the name, though note that Sr. went by J. Don Boney.
Judge Nullifies Juror Nullification:
A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case: It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.
But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below. To read his analysis go to Juror Becomes Fly in the Ointment.
For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852).
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.
12.5 Square Miles of Solar Panels:
Two massive solar power plants are planned for central California.
The plants will cover 12.5 square miles of central California with solar panels, and in the middle of a sunny day will generate about 800 megawatts of power, roughly equal to the size of a large coal-burning power plant or a small nuclear plant.
The power will be sold to Pacific Gas & Electric, which is under a state mandate to get 20 percent of its electricity from renewable sources by 2010. The utility said that it expected the new plants, which will use photovoltaic technology to turn sunlight directly into electricity, to be competitive with other renewable energy sources, including wind turbines and solar thermal plants, which use the sun’s heat to boil water. . . .
Though the California installations will generate 800 megawatts at times when the sun is shining brightly, they will operate for fewer hours of the year than a coal or nuclear plant would and so will produce a third or less as much total electricity.
the plants are a big step for solar power, but they also highlight solar power's limitations: the need for over 35 square miles of solar panels to generate the same amount of power as a single coal plant, but without the same level of reliability.
Thursday, August 14, 2008
Are We All Still Environmentalists?
Roger Pielke Jr. cites some interesting polling data purporting to show the percentage of Americans considering themselves to be "environmentalists" has declined dramatically over the past 20 years. Today just over 40 percent of respondents answer "yes" to the question “Do you consider yourself an environmentalist or not?”
Does this mean that Americans are less supportive of environmental protection than in the past? I doubt it. One possibility is that an increasing percentage of Americans reject the idea that the environmentalist movement has a monopoly on what it means to be "pro-environment." Americans who support environmental protection may feel uncomfortable with either the tactics or policy prescriptions embraced by establishment environmental groups. If so, it should not be much of a surprise.
A decade or so ago --back in my own activist/think tank days -- I commissioned polling work on what Americans believed it meant to be "pro-environment," finding that many Americans saw "conservative" approaches to environmental protection -- e.g. decentralization, protection of property rights, non-regulatory measures, etc. -- as "pro-environment." (See summaries here and here.)
I believed then -- and believe now -- that this and other polling data suggest that establishment environmentalist groups lack an enforceable monopoly on what it means to be "pro-environment." Insofar as conventional "greens" dominate the field, it is by default. Conservative and libertarian types generally -- and conservative politicians in particular -- have largely ceded the field. They either endorse conventional policies on the cheap, or oppose establishment environmentalist proposals outright without proposing a positive alternative. My own somewhat-academic effort to outline such an agenda can be seen here, but I've hardly answered every problem (or even come close). If only John McCain or some other market-oriented politician would take seriously the need to develop a pro-environment alternative, they might even have a ready-made constituency waiting in the wings.
Jewess:
Commenter jgshapiro asks, apropos a recent case that used the term,
A side note, but when is the last time you heard a judge refer to someone as a "Jewess"?
Well, if you do a Westlaw search for the term, the immediately preceding case is In re B.C., 680 N.E.2d 1355 (Ill. 1997), with the following notation in the list of amici (granted, seemingly put there by West Publishing and not by the court):
Gary Feinerman, Mayer, Brown & Platt and Jenner & Block, Chicago, for the American Jewess Congress.
And, yes, it's that way in the printed reporter.
Worst Phishing Email I've Received, from "Rolland Holland":
I actually found this one to be so bad, I was somewhat amused. From an email address in the Netherlands:
ONLINE NOTIFICATION OF WINNING [of winning?]
The British National Lottery, [no salutation, but in form of one; why is a notification of winning a British lottery coming from a Netherlands address?]
Wishes to Congratulate [cap?] you on your success as one of our Ten(10) Star Prize Winner [no "s"] of the Online International Awareness Promotion (IAP) [where's the "O"?] held 14th August, 2008 in London. This makes you the proud owner of a prize of £1,856,652 Pounds [pound symbol and pounds spelled out, and incorrectly capitalized]. To begin processing of your prize. [why does the sentence stop here?]
Contact claims officer via below informations [informationS?]:
Name: Bar Janet Wasborn ["Bar?"]
Phone: +447011137932
E-mail:jwasborn12@live.com [odd email address for a claims officer of the British Lottery]
Contact him [a "him" named "Janet"?] with your Serial No: S/N-472-9768-79 [why does this look suspiciously like a Social Security number?]
Also provide listed informations: [Again, "informationS"]
Names: [another extra "s"]
Address:
Sex:
Marital Status:
Age:
Occupation:
Phone no:
Country:
Yours sincerely,
Roland Holland [They couldn't think of a name that didn't rhyme? Or be the same as the country they are emailing from?]
Senior Claims Officer.
Het UMC St Radboud staat geregistreerd bij de Kamer van Koophandel in het handelsregister onder nummer 41055629.
The Radboud University Nijmegen Medical Centre is listed in the Commercial Register of the Chamber of Commerce under file number 41055629.
[What the heck does the above have to do with the British National Lottery?]
"Indigenous Nudity":
Spotted by Arnold Zwicky (Language Log), on a Travel Channel food show:
This program contains indigenous nudity. Parental discretion is advised.
A Reason to Resist Getting a Legal Education:
Bill Poser (Language Log) reports:
Sir William Jones, the great scholar of "eastern" languages routinely (though incorrectly) credited with discovering the Indo-European language family and founding modern historical linguistics, was by profession a lawyer. He learned Sanskrit as a judge in India. In his book Dangerous Knowledge: Orientalism and its Discontents, Robert Irwin reports (pp. 123-4) that:
At an early stage in his life, Jones's father had considered attaching him to a chambers to get a legal education, but Jones had resisted this on the understandable grounds that the quality of the Latin used in English law books was so very bad.
Tortious vs. Tortuous:
A slip I caught myself making, though fortunately I caught it in time. A quick Westlaw search suggests others have made the slip, too.
(At some point, of course, each word may acquire the other word's meaning as an alternate meaning, and the Oxford English Dictionary does suggest there's been some element of that for centuries. But the OED still marks this as an error, which leads me to believe that the slippage is rare enough that, descriptively, it isn't yet standard -- and is in any event likely to needlessly annoy many readers.)
Running Deer? Call Me Sitting Shiva:
An interesting legal question (and, as usual in such cases, hints of a deeply unpleasant factual back story), from In re Estate of Feinberg: "Can an Illinois court enforce a testamentary provision that any of the testator’s grandchildren who marry outside the Jewish faith, unless the spouse has converted or converts within one year of the marriage to the Jewish faith, will, for purposes of the testamentary instrument, be deemed to be deceased, along with all of his or her descendants?"
The court says no, by a 2-1 vote. Two judges take the view that such a testamentary provision is against Illinois public policy, and courts should not enforce it. One of the two judges in the majority also argues that it's unconstitutional for the courts to enforce it, citing Shelley v. Kraemer, the 1948 case that held that courts may not enforce racially restrictive covenants. The dissenter disagrees on both counts, and suggests that the provision is a legally acceptable way for the decedents to "seek to preserve their 4,000-year-old heritage." The judges acknowledge that the precedents from other states are mixed, though those precedents all tend to be quite old.
The judges do not expressly discuss a different possible constitutional objection: That the Establishment Clause bars civil courts from deciding who is within "the Jewish faith," just as civil courts may not decide which church is truly Presbyterian and which has "depart[ed] from [the orthodox] doctrine." In at least some situations, there would be serious disputes over who belongs to "the Jewish faith," especially since that term usually means "is Jewish under Jewish law," a matter that can be famously contested among the different streams of Judaism; I doubt that civil courts are allowed, under current First Amendment law, to resolve such disputes. Should that preclude any judicial enforcement of such conditions in wills, or only when there is in fact a serious dispute about whether the spouse is Jewish?
(In case you don't get it, an explanation of the post title can be found here and here; it's a pretty famous joke among Jews, I think, though the attitude it refers to is more sad than funny. Setting aside the propriety of the grandparents' underlying plan, I would have hoped the trust could have been drafted in a way that's less symbolically unloving than labeling some grandchildren as dead, even if such labeling is convenient as a matter of pure drafting.)
Thanks to Michael Pitkowsky for the pointer.
Forensic Science Reform:
Radley Balko and Roger Koppl have an article in Slate urging forensic science reform.
CardHub and the Market for Information in the Credit Card Market:
One of my longstanding frustrations with regulation of credit cards (and consumer credit generally) is that regulation is enacted without always clearly specifying the market failure to be addressed. Most credit regulation today is disclosure-based rather than substantive. Substantive regulation is something like a usury regulation that caps the interest rate that can be charged. Substantive regulation has been understood to be generally counterproductive in consumer lending markets, so disclosure-based regulation like Truth in Lending has become the way in which regulation is done.
The logic behind disclosure-based regulation is that by creating standardized disclosure of terms thought "important" then it eases consumer shopping. That is true, of course, as far as it goes. But it doesn't work well in situations where consumers have heterogeneous preferences and shop on many margins. So, for instance, credit card solicitations include the "Schumer Box," which requires certain "important" terms to be disclosed prominently in a tabular format. Those terms include things that are obviously important, such as the APR and annual fee, but also things that may have been important 20 years ago such as the "Minimum Finance Charge" which is almost always 50 cents now. Some cards now disclose in the Schumer Box things like the foreign transaction fee--which, of course, is only relevant to a small percentage of credit card holders. So regulation requires prominent disclosure of terms that people do care about, but also require prominent disclosure of terms that people don't care about. Moreover, once certain disclosures are set by law or regulation they are frozen in amber and become very difficult to change.
The problem with this is that by requiring certain terms to be prominently disclosed, it becomes more difficult for consumers to locate the terms that they do care about. One quickly gets into the information overload scenario for the typical consumer. This also leads to the "fine print" problem, as it leaves less space for disclosure and elaboration of other terms.
Moreover, the whole model seems to misunderstand the whole logic of the market for information. If a term is important to consumers (such as the interest rate or annual fee) it is not clear why credit card issuers would not disclose it or why consumers would not demand that information. Do people buy products when they don't know the price? But for information that is trivial for most consumers, such as the minimum finance charge or the foreign transaction fee, most consumers are unlikely to shop on that margin and it is unlikely to relevant for most consumers, so there's no reason to believe that this would part of a standardized disclosure format. Instead, it would be expected to be on a need-to-know basis, in the sense that idiosyncratic consumers would get that information when and if they needed it.
To the extent that regulation is appropriate, therefore, the first question should be to ask whether there is a market failure in the market for information and what kind of regulation will address it. It may be that there are market failures in the information market that require intervention. But current regulation doesn't even really seem to be thinking about the question this way. This is exacerbated by the problem of what I call "back-door substantive regulation" or "normative regulation" where regulators use disclosure regulation not to help consumers shop for and get what they actually want, but rather to try to influence their choices and try to get them to focus on what the regulator wants them to focus on to try to shape their behavior. So, for instance, a regulator might say "I'm worried about consumer overborrowing. And I know it is counterproductive to engage in usury regulation. But if I hit consumers over the head with information about how much credit costs them, then maybe I can get them to borrow less." So certain terms end up getting disclosed more prominently than consumers actually care about them because the regulator is actually trying to advance some other goal. If this is the regulator's goal, then fiddling with disclosure-based regulation seems like a poor way to do this. One example is the requirement that consumers be told how long it will take to payoff their balance if they only make the minimum payments. It appears that this actually affects about 4% of cardholders. In the end normative disclosure ends up being a poor way of helping consumers to shop better while also being a poor way of doing substantive regulation. I've talked about these questions more in my lecture on "The Economics of Consumer Lending" which is available on my website here.
Now the problem gets complicated with heterogeneous consumers. Nowadays about half of consumers use their credit cards for convenience or transactional purposes and never revolve balances. I am in this category. I have no idea what my interest rate is on my credit cards. Nor do I know my minimum finance charge, my interest rate on cash advances, etc. And I don't shop for credit cards on those margins. I shop on the basis of my annual fee and benefits, such as cash back or frequent flyer miles (I canceled my frequent flyer card because the annual fee was too large for my taste relative to the benefits). Yet if I shop for a credit card, the credit card solicitation is filled up with all of this junk that I don't care about. So it becomes much more difficult for me to find the information I do care about. And again, it seems like credit card issuers have an incentive to provide me with the information I need to shop and choose their card.
So I've always thought that it would be great for there to be a website where you could go and essentially get personalized or tailored disclosures to the margins that you care about, rather than the standardized disclosures that are compelled by the regulatory apparatus. Sort of like a Consumer Reports for credit cards.
So, at last, we get to the point of this exegesis. There is a new website called CardHub that directly addresses this issue by enabling you to compare a whole bunch of credit cards according to the terms that you care about. It includes most every price term you could care about, including balance transfer fees, default APR, etc. It also includes not just benefits, but particular benefits (cash back, frequent flyer, etc.).
Maybe there are some glitches with CardHub that aren't obvious to me. But playing around on the web site this seems like a very pro-consumer market innovation that uses technology to directly address the information economics issues that underlies consumer credit markets and to enable consumers to make better choices. And perhaps there are other websites that do the same thing. But I think this is a great innovation to address the desire of consumers to get useful information to compare card offers, one that seems quite superior to traditional horse-and-buggy consumer credit regulation. Of course, this won't address the concerns of those who don't like the choices consumers make, but in terms of simply enabling consumers to better locate the cards they want, this seems like a great idea.
Maher Arar En Banc:
The U.S. Court of Appeals for the Second Circuit has decided, sua sponte, to rehear the case of Maher Arar en banc. This is an interesting and unusual development. Details here and here.
"Emotional Safety" / "Emotional Harassment" on University Campuses:
The Daily Record reports: The University of Maryland, Baltimore County will change its facilities-use policies after a student pro-life group claimed its First Amendment rights were violated when its display featuring graphic images of aborted fetuses was moved away from a prominent public area on campus.
While lawyers for UMBC said in U.S. District Court in Baltimore Friday that the school’s decision to move Rock for Life-UMBC’s display was “content neutral,” it agreed to revise rules as to when university officials are allowed to move a student group display without notice, such as inclement weather or safety concerns.
The two sides will give Judge J. Frederick Motz a joint status report Sept. 19 on the implementation of the new policy, at which point the student group can decide if it wants to continue its lawsuit by challenging the university’s speech code....
Members of Rock for Life, a registered student organization at UMBC, were given permission by university officials in mid-April 2007 to put up a display outside one of the university’s main buildings on April 30, 2007, according to Rock for Life’s complaint filed in April 2008.
The display was from the Genocide Awareness Project, a traveling exhibit for college campuses featuring graphic images of abortion sponsored by The Center for Bio-Ethical Reform, a California-based pro-life group. The display consists of either 6-foot-by-13-foot posters or 4-foot-by-6-foot-posters.
But, according to the complaint, the group was told to move its display two times — once on April 25 and again on April 30 before the display was set up — to progressively “more deserted” areas on campus.
Aden said the university moved Rock for Life because of its message, noting larger events and other student groups have used the space Rock for Life originally requested....
But Sally L. Swann, an assistant attorney general representing UMBC, said the display was moved because the proposed 24 large posters would obstruct building exits and posed a fire hazard....
Lawyers for both sides met during several lengthy recesses to hammer out the details of the newly worded facilities-use policy, with the university removing the phrases “emotional safety” and “emotional harassment” from the list of reasons officials could move a display without notice....
Whether the policy was applied in a content-neutral way in this case, it seems pretty clear that "emotional safety" and "emotional harassment" language in such policies is easily usable in content- and viewpoint-based ways. Certainly the one UMBC policy that I could find that uses these terms — Article V.B of the Code of Student Conduct — seems unacceptably vague and, in its most plausible interpretation, unconstitutionally content-based (especially given that the university seems to concede that it is are applicable to displays and not just to, say, individualized threats conveyed to a particular person): Any student found to have violated the following rules and regulations is subject to the sanctions outlined in Section C ...: ...
2. Behavior Which Jeopardizes the Emotional or Physical Safety of Self or Others.
This rule prohibits, but is not limited to, the following: ...
f) physical or emotional harassment; ...
How Much Is Your Blog Worth?
We're worth $1,176,501.36, we're told by a blog worth calculator. But to whom?
A Pretty Comprehensive List of Post-Heller Second Amendment Opinions, With Excerpts and Commentary:
Those who are interested in the subject and who haven't been reading the posts on post-Heller Second Amendment cases can see all (or nearly all) on one Web page.
The Second Amendment and People Convicted of Domestic Violence Misdemeanors:
From U.S. v. Booker (D. Me. Aug. 11) (Woodcock, J.):Heller left unanswered a significant question: The level of scrutiny the Court must apply to the restriction on Mr. Booker's individual right to bear arms. As Heller notes, the "traditionally expressed levels" are "strict scrutiny, intermediate scrutiny, and rational basis." The Heller majority acknowledged that it did not establish "a level of scrutiny for evaluating Second Amendment restrictions," but it left some hints. First, the Heller majority rejected Justice Breyer's "interest-balancing" approach, observing that it knew "no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." Second, the majority conceded that the District of Columbia law would pass rational-basis scrutiny and, since it ruled the District's complete ban on handguns unconstitutional, the necessary implication is that the rational-basis test is not applicable. The remaining options are strict and intermediate scrutiny.
Strict scrutiny is generally reserved for statutory restrictions that affect the exercise of certain "fundamental right[s]." The individual right to bear arms might well be a fundamental right, the restriction of which requires strict scrutiny. This conclusion is supported by the placement of Second Amendment within the Bill of Rights alongside this Country's most precious freedoms. However, as Justice Breyer points out, Heller expressly approves some statutory restrictions -- the types of people who may exercise this freedom; the places where this freedom may be exercised; and, the ability to buy and sell the objects of this freedom -- "whose constitutionality under a strict scrutiny standard would be far from clear." "Intermediate scrutiny is used, for discrimination based on gender and for discrimination against nonmarital children." Heller itself concedes that it does not "clarify the entire field." It consciously left the appropriate level of scrutiny for another day.
Rather than tackle this complex and unanswered question, the Court starts from a different place. Heller teaches that even though the Second Amendment guarantees an individual right to bear arms, it is "not unlimited." Heller states that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of "longstanding prohibitions" that survive Second Amendment scrutiny.
The Court concludes it does. To reach this conclusion, the Court starts by comparing the constitutionally-sanctioned prohibition against firearm possession by felons with the prohibition against persons convicted of misdemeanor crimes of domestic violence. A person can, of course, be convicted of a felony which had nothing to do with physical violence and which would not necessarily predict future misuse of a firearm. Nevertheless, the law forbids any convicted felon, regardless of the nature of the felony, from possessing firearms and Heller constitutionally sanctioned this broad prohibition. [Footnote: The same point is generally applicable to the mentally ill....]
By contrast, the predicate offense under which Mr. Booker was convicted is defined in 18 U.S.C. § 922(g)(9) as requiring "the use or attempted use of physical force" by someone who is a spouse, parent, or guardian of the victim or someone in a position similar to a spouse, parent, or guardian of the victim. [Footnote: Mr. Booker emphasizes that an individual may be convicted of a misdemeanor crime of domestic violence in Maine by reckless behavior; he argues that there is not a significant enough government interest to deprive him of his Second Amendment right if he acted only recklessly. However, the felony convictions to which Mr. Booker's predicate offence is being compared run the gamut of the mens rea spectrum, and a domestic violence offender's mens rea does not impact the Court's analysis under Heller.] If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1). Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration.
Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of "felons and the mentally ill" against whom the "longstanding prohibitions on the possession of firearms" survive Second Amendment scrutiny.
Not an unanswerable argument, of course, but at least a plausible and relatively detailed attempt to confront the underlying question, unlike some of the other early post-Heller district court decisions (see, for instance, here).
Atkins and Double Jeopardy:
Last February, a three judge panel on the U.S. Court of Appeals for the Sixth Circuit granted death row inmate Michael Bies's habeas petition, holding that the Double Jeopardy clause bars the state from re-litigiating the issue of Bies' mental retardation. The Ohio Supreme Court has affirmed Bies' death sentence in 1996, despite his mental retardation. The Court agreed with lower courts that this mitigating factor was not outweighed by other aggravating factors. Since then, however, the U.S. Supreme Court has held, in Atkins v. Virginia, that state may not execute the mentally retarded. Bies filed a habeas petition on these grounds, seeking to get a life sentence, prompting prosecutors to re-open the question of Bies' mental retardation. No dice, the Sixth Circuit panel held last fall, as reopening this issue would violate the Double Jeopardy clause. As the opinion by Judge Clay concluded:
Under the Double Jeopardy Clause, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443. This rule establishes an absolute bar to a state seeking to relitigate such an issue of ultimate fact, regardless of the correctness of the original decision. . . . We therefore do not concern ourselveswith the merits of Petitioner’s Atkins claim; the only question before this Court is whether the government, having litigated and lost the issue of Petitioner’s mental retardation, is now attempting to reopen this question. . . .
Having examined the record in this case, we determine that Petitioner was found to be mentally retarded, under the clinically accepted definition of mental retardation, by a final judgment of the Supreme Court of Ohio. We further determine that the government is now seeking to relitigate this identical issue, that the Supreme Court of Ohio’s finding was necessary to its judgment, and that the government had a full and fair opportunity to litigate this issue on direct appeal. . . . Accordingly, this case is controlled by the United States Supreme Court’s decision in Ashe, and this Court is obligated to follow that decision. As § 2254 does not require us to defer to the state court’s judgment in this case, we therefore AFFIRM the decision of the district court granting habeas relief to Petitioner, vacating his sentence of death, and ordering that he be resentenced to receive a sentence other than death.
As the time, Robert Loblaw found the decision to be "remarkable" and "creative." Yet as Orin noted at the time, Loblaw also predicted "reversal is inevitable." Not so fast. Last week, the U.S. Court of Appeals for the Sixth Circuit denied the state's petition for rehearing en banc. Judge Clay wrote an opinion concurring in the denial of en banc review. Judge Sutton dissented. His dissent concludes:
What is most trying about all of this is that it does not seem necessary. When the federal courts first acted in this case, they interrupted a state trial court proceeding designed to determine whether Bies had a successful Atkins claim. The whole point of the double-jeopardy argument was to stop the state court proceeding in its tracks and to prevent the same courts from opining about the validity of his Atkins claim. In obliging Bies, however, we have failed to give the state courts a chance to bring their judgment to bear on the point, and after this decision federal district courts within the circuit presumably will do the same thing with other similarly situated Atkins cases. See State v. Hill, No. 2006-T-0039, 2008 WL 2719570, at *6 (Ohio Ct. App. July 11, 2008) (disagreeing with Bies and holding “that the issue of Hill’s mental retardation was not ‘actually and directly litigated’ at his sentencing hearing”). AEDPA’s exhaustion requirement exists to prevent just this kind of premature intervention while a State addresses the petitioner’s challenge. . . . And unlike cases where we have permitted unexhausted double-jeopardy challenges before the defendant’s second prosecution commenced, . . . Bies faces no risk of a second prosecution.
By contrast, were we to allow the state court proceeding to go forward, Bies is hardly in a disadvantaged position. He has an IQ of 69, and two licensed clinical psychologists have concluded that he is mildly mentally retarded. Assuming that these opinions stem from balanced evaluations of Bies’ mental capacity, there is ample reason to think that the Ohio courts will take his claim seriously. Atkins, like Bies, was mildly mentally retarded . . ., and Bies’ IQ places him within the category of individuals the Court recognized might be affected by its decision . . . . Nor have the Ohio courts been reluctant to grant relief under Atkins. The Ohio Supreme Court already has granted relief in one such case, State v. White, 885 N.E.2d 905, 917 (Ohio 2008), and the state trial courts have done the same in six others . . . . And even if the worst should happen from Bies’ perspective, even if the Ohio courts should conclude that Bies was not mentally retarded under Atkins, he could seek certiorari on the question or seek habeas relief in the district court. Far from undermining Atkins, this path (through state court determinations) is exactly what the Supreme Court envisioned: For Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” and principles of comity and federalism mandate that we give the Ohio courts the first opportunity to apply that restriction to Bies’ case.
Vanishing Bill of Rights Coffee Mug:
I have one, and I think it's kind of cool, at least in an ironic lawgeek way. Plus, the Second Amendment and the Takings Clause don't vanish, so it should leave most VC readers pretty happy.
Illegal Aliens and Other Constitutional Provisions:
The magistrate judge's opinion in the Second Amendment illegal alien case also reminded me of our own then-Judge Paul Cassell's opinion in a Fourth Amendment case involving an illegal alien who feloniously reentered the U.S. If the magistrate judge's opinion is adopted by the district court, and the decision is then appealed and affirmed using the reasoning that "the people" doesn't generally include illegal aliens, it may well have an important effect on Fourth Amendment illegal alien cases as well as Second Amendment ones.
UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):
In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo's argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.
While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal act other than to remain in this country illegally....
Having rejected the categorical position that all illegal aliens as a class lack sufficient connection to this country to assert Fourth Amendment rights, the court has no legal arguments before it disputing Atienzo's specific position that he has sufficient connections. In light of the posture of the case, the simplest course is for the court to then accept the uncontested specific view that Atienzo can claim Fourth Amendment protection.
The Second Amendment opinion I link to, of course, concludes that illegal aliens generally, not just illegal alien felons, lack Second Amendment rights.
The Second Amendment and Non-Citizens:
The Second Amendment / illegal alien decision discussed in the post below reminds me of a broader question — do noncitizens who are legally present in the U.S. have Second Amendment rights?
1. Federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa. Some state laws go further and ban all possession by noncitizens, including by permanent residents. The law of Guam likewise bans all possession by noncitizens, and because federal statutes extend the Bill of Rights to Guam, the Guam law could be challenged even without reaching the question whether the Second Amendment is incorporated against the states.
Generally speaking most constitutional rights have been extended (at least where criminal punishment, as opposed to the threat of deportation, is involved) to legal aliens. Should this apply to the Second Amendment? The reasoning in the illegal alien opinion seems to potentially apply to legal aliens as well, though that's not clear.
2. Also, what about the Court's doctrine that state and local laws (as opposed to federal law) discriminating based on citizenship are subject to strict scrutiny? There's an exception for discrimination that denies aliens access to "political functions" that are "intimately related to the process of democratic self-government" (such as voting or jury service, or hiring of police officers, probation officers, or public school teachers), but given the Court's self-defense-rights reasoning in Heller, that likely doesn't apply here. A few state courts have considered this argument, and have split on it. See generally Pratheepan Gulasekaram, Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment, 92 Iowa L. Rev. 891 (2007).
3. Note also that some state constitutions secure a right to keep and bear arms to all persons, while others speak of "people" and still others speak specifically of "citizens." There might thus be a right to bear arms under at least some such state constitutions, as I argued in this op-ed that criticized an Omaha ban on handgun possession by noncitizens (including perfectly legal residents) — the Nebraska Constitution provides that "All persons have certain inherent and inalienable rights," including "the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes." Cf. People v. Zerillo, 189 N.W. 927 (Mich. 1922) (striking down on state right-to-bear-arms grounds a ban on aliens possessing guns); People v. Nakamura, 62 P.2d 246 (Colo. 1936) (likewise). But see State v. Vlacil 645 P.2d 677 (Utah 1982) (rejecting such a claim without much explanation, under a state constitutional provision that speaks of "the people" rather than citizens); and there are also several decisions from other states that reject noncitizens' claims on the plausible theory that the particular state constitutional provision speaks expressly of a right of the "citizen."
Second Amendment Doesn't Protect Illegal Aliens:
So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a constitutional challenge to a federal statute that criminalizes gun possession by illegal aliens. Seems like a pretty sensible result, but what's interesting is the reasoning:
That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.... For instance, Samuel Adams and other delegates urged the Massachusetts ratifying convention to recommend barring Congress from “prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms.” The New Hampshire convention proposed that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” In these proposals, the pre-existing right clearly inured only to “peaceable” or lawful “Citizens.” See also David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626–27 (2000) (“The average citizen whom the Founders wish to see armed was a man of republican virtue -– a man shaped by his myriad ties to his community, the most important for this purpose being the militia.”).
Founding-era statutes confirm this limitation on the pre-existing common law right. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, even within the confines of the pre-existing right to keep and bear arms, certain persons -– such as those who did not swear loyalty to this country -– were seen as falling outside the protection of that right, and laws or regulations that disarmed them were well-established at the time the Second Amendment was adopted. Indeed, several Founding-era state constitutions expressly provided that the right to bear arms extended only to “citizens.” See, e.g., Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817); Conn. Const. (1818); Me. Const. (1819).
Along these same lines, Heller concluded that the reference to “the people” in the Second Amendment “unambiguously refers to all members of the political community, not an
unspecified subset.” Heller grouped this reference to “the people” with others found in the Bill of Rights, specifically the First, Fourth, and Ninth Amendments, as
defined by an earlier Supreme Court decision, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision, which related to the scope of the Fourth Amendment’s application to the DEA’s search of a foreign national that took place
on foreign soil, Justice Rehnquist’s majority opinion adopted the following definition of “the people”:
“[T]he people” seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:
The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.
Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution’s jurisdiction and have “developed
substantial connections with this country” are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that “all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ....”
Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General’s permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....
Clearly, under any historical interpretation of the enactment of the Second Amendment or the interpretation of any similar right under the Constitution, the individual right to bear arms defined by Heller does not apply to an illegal and unlawful alien. This Defendant, alleged by this Indictment to have been an unlawful alien, is not a citizen, is not ostensibly a person with identifiable and significant ties to the community, and is not someone who has any duty of allegiance to the United States. A person of his status could have been barred from possessing a firearm under English or Colonial American common law, and similarly could be precluded from doing so under the Second Amendment. His mere presence here does not entitle him to constitutional protection because he is clearly outside the scope of the “political community” who are conferred rights under the Second Amendment....
I'm inclined to be skeptical of arguments based on Revolutionary-War-era statutes — what a nation did in time of a war in which its existence is in very serious doubt doesn't tell us that much about what the general constitutional rules ought to be. But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.
More on the implications of this decision (and of the underlying question) in posts to come. Thanks to Robert Luck for the pointer.
Perceptions of the Terrorist Threat and the Anthrax Attacks:
A few weeks ago, the Justice Department was preparing to indict Bruce Ivins, a biodefense scientist, for the 2001 Anthrax attacks. The government's apparent theory was that Ivins launched the attacks to make his field of research of more important (and perhaps to make money from some patents he held in the area). Ivins committed suicide before being indicted, and DOJ has now released a redacted version of the documents it had on Ivins that it believes show he was responsible for the attacks. Assuming that DOJ was right that Ivins and Ivins alone was behind the attacks, the anthrax attacks provide a fascinating example of how perceptions of the terrorist threat are formed. Back in October 2001, shortly after 9/11, the Anthrax attacks were front-page news. Five people died, and many high-level government employees were treated to a round of Cipro treatments in case they had been infected. In a nutshell, a lot of important people were seriously freaked out. Perhaps the most important personal reaction to the 2001 Antrax attacks was that of Vice President Cheney. According to Jane Mayer's new book, the anthrax attacks had a major effect on Cheney. He thought Al Qaeda was behind them, and at one point he even thought that he personally had received a lethal dose of anthrax. Soon after the attacks, Cheney started spending time at an "undisclosed location" in case Washington DC was obliterated: the threat of massive casualties from such an attack helped propel Cheney's sense that strong and uncompromising countermeasures in the war on terror were necessary. According to some reports, Cheney was so worried about a biological weapon attack after the 2001 anthrax episode that he pushed for mandatory inoculation against smallpox even though it would have led to many American deaths from side-effects. I think it's interesting to compare the impact of the October 2001 Anthrax attacks to the impact of the December 2001 shoe-bomber, Richard Reid. Reid actually was an Al Qaeda member: He actually did try to blow up a plane using a bomb on board. And yet my sense is that the Reid episode had a much lesser impact on public perceptions of the Al Qaeda threat than did the Anthrax attacks. Why is that? I think part of it is that the anthrax attacks were unsolved: Back in 2001-02, when perceptions were formed, the source of the anthrax attacks remained mysterious and therefore threatening. The attacks could be anywhere, at anytime. In contrast, Reid was identified and stopped, and he put a human face on the attack. In the public mind, Reid became just a strange Muslim dude who tried to light his shoe on fire. Part of it is also that the anthrax attacks appeared successful. My sense is that the public mind is over-influenced by attacks that seem successful and under-influenced by the ones that don't; near misses don't register very much in the public mind, while lucky hits register as if they were predestined. The contrast between the public reaction to the 1993 World Trade Center attacks and the 2001 World Trade Center attacks reinforce this. Both were efforts by Al Qaeda cells to bring down the World Trade Center buildings: The first failed and the second succeeded. My sense is that a lot of people saw the 1993 attacks that failed to bring down the Towers as the work of a few nuts with a truck. In contrast, the 2001 attacks that succeeded registered in the public mind as the work of brilliant terrorist masterminds. Anyway, I don't have any grand theoretical claim here. I just think it's interesting to reflect on what events trigger what threat perceptions, and how hard it is for us as members of the public to assess the threat based on what we can see.
Wednesday, August 13, 2008
Follow-Up on College Dating:
The other day I linked an article in the Chronicle of Higher Education on the changing social scene at colleges where women dramatically outnumber men. It turns out that many readers were unable to access the article but were interested in reading it. I've found it on the author's blog www.whyboysfail.com. You can get it here. This is the first I've heard of this blog but it looks like there's some very interesting stuff there.
Recent Scientific Evidence News:
(1) The New York Times has a piece discussing the problems with adversarial expert testimony in the U.S., and promoting the Australian system of "hottubbing" as an alternative. I'm skeptical that this less adversarial approach will catch in the U.S.; despite it's long-term failure so far, I still think that finding a way to use nonadversarial experts (agreed to by the parties or if necessary appointed by the courts) is the way to go. Indeed, the Times doesn't mention it, but Australia (or maybe it's just some Australian jurisdictions) also is adopting a system requiring the parties in civil litigation to agree on a slate of experts.
(2) Balko and Koppl discuss sound ideas for reforming forensic science in Slate.
(3) ABC News has an extremely irresponsible report on families that fled Love Canal three decades ago. Apparently, and in contrast to previous studies, a new report forthcoming from the N.Y. Department of Health finds some elevated health risks among the evacuees and their children. But since the report hasn't been released, and the Department of Health declines comment, there is no way to evaluate it. Meanwhile, ABC repeats every unsubstantiated, and in some cases rebutted by earlier studies, claim about health problems among Love Canal evacuees.
(4) This isn't really news, but if the above topics interest you, you will undoubtedly want to download my recently published article in the Iowa Law Review, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution.
Post-Heller Federal Appellate Decision on the Second Amendment:
U.S. v. Fincher (8th Cir.) (thanks to How Appealing for the pointer):
[U]nder Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. [The court apparently took the same view as to Fincher's sawed-off shotgun. -EV] Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller.
There's more, dealing with Fincher's pre-Heller arguments that his membership in a non-state-run militia group gave his actions constitutional protection.
It Doesn't Have To Be That Complicated:
Found in a brief filed in federal court:
See generally United States v. Dorosan, No. 08-042 (E.D. La. 2008)(U.S. Magistrate Judge’s June 30, 2008 memorandum holding that Heller and Emerson hold that the Second Amendment protects a fundamental
right)(Found on internet at www.volokh.com, scroll to July 16, 2008 blog entries and the entry entitled “Ninth Circuit’s Sensible Response to a DC v. Heller Claim.” At the end of the entry, click the seventh entry entitled “Another Early Post-Heller Second Amendment Case” and it will carry the HTML link to the Dorosan opinion).
I don't know what browser or what settings the lawyer was using, but generally just clicking on the link to the opinion will show the address ("http://volokh.com/files/dorosan.pdf") in the navigation bar — and, if it doesn't, right-clicking on the link will usually give you a way of getting the opinion. Plus, I'm told you can always do things the old-fashioned way, and attach a copy of the unpublished opinion to the brief.
But on the other hand, I like the idea of our site being a special library in which precious documents can be found, even if only through elaborate instructions passed along by the cognoscenti. Just go to the third floor, turn right at the first black set of stacks, go ten feet down, and open the seventh book on the bottom shelf — you can't miss it.
Posner, Heller, and the Original Meaning of the 2d Amendment.--
In Dick Posner’s attack on Heller, excerpted by Orin Kerr, Posner offers this “originalist” analysis:
The Second Amendment, part of the Bill of Rights added to the original Constitution in 1791, states: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In other words: since a militia, provided that it is well regulated, is a very good thing for a free state to have, the federal government must not be allowed to castrate it by forbidding the people of the United States to possess weapons. For then the militia would have no weapons, and an unarmed militia is an oxymoron.
Politically conscious Americans in the late eighteenth century feared standing armies, having fought the British army in the Revolution, and feared centralized government (as in Britain); and on both counts they wanted to make sure that the states would be allowed to have armed militias. The federal government could regulate them but not disarm them. The fear was that in the absence of such a provision in the Bill of Rights, the provision in Article I of the Constitution authorizing Congress to organize, arm, discipline, and call into service "the Militia" (a term that embraces the state militias, because the same provision reserves the right to train and officer "the Militia" to the respective states) would enable Congress to disarm them. That fear surfaced in the debates over the ratification of the original Constitution and was, as Justice John Paul Stevens's dissenting opinion explains, the motivation for the Second Amendment.
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
Note first that Posner’s version of originalism focuses on the supposed “motivation” for the Second Amendment. Posner is using “original intent” originalism, not “original meaning” originalism. While looking at probable intent can be revealing, it can also deteriorate into what Randy Barnett has called “channeling the framers.”
Second, Posner cites no early authority for his view of original intent (or original meaning) other than the text itself and Justice Stevens’s opinion.
As for Posner’s textual analysis, we know from Eugene Volokh’s pathbreaking analysis of preambles in early state constitutions that preambles were not viewed as significantly limiting the underlying rights they granted. Even if Posner were correct that protecting state militias was the only goal of the Amendment – and there is evidence against this proposition and no evidence in favor of it – the framers may still have chosen to guarantee a right broader than was necessary to fulfill that motivation. That’s one reason it’s important to look primarily at the language they chose, not mostly at their motivations for acting.
But the bigger problem has already been suggested: how does Posner know that the framers did not have broader goals for the Amendment? There is no evidence that they intended the Second Amendment to be limited to militia and some evidence that they didn’t. Indeed, several contemporary authorities that addressed whether the proposed or recently adopted amendment protected an individual right described it as doing so.
Posner states categorically what the originalist interpretation of the text is or should be, but if he is correct, why did no framer or early commentator ever offer that view? Why did several early commentators treat the Second Amendment (or its drafts) as guaranteeing an individual right, including in some cases a right for the purposes of self-defense and hunting?
As for Posner’s hypothetical about seizing weapons in wartime, I don’t see how it significantly advances his argument. Rights are not absolute. First, if there is a right, then the state should be loathe to seize weapons except in the direst of emergencies. Second, if the state did take weapons, the state would have to pay for this taking, as it would if it took any other property covered by property rights protected by the state. (Also, I recall that some states (and/or colonies) treated firearms as privileged, protecting them from distress for debts.)
On evidence from the first major commentator on the Second Amendment, St. George Tucker, here is the leading young historian on the legal and political history of guns in the late colonial early republic periods, Robert Churchill:
It is clear from the Tucker's gloss on the Second Amendment in the manuscript draft [from the early 1790s] that he saw in the amendment a guarantee that extended well beyond the concern over federalism that Cornell discusses. Tucker noted that "in England the people have been disarmed under the specious precept of preserving the game." In a note on the facing page, Tucker commented that in England, "the right of the people to bear arms" was by the inclusion of limiting language "entirely done away." In this gloss, Tucker suggested that the passage of England's game laws had in England eliminated the constitutional protection that the Second Amendment was intended to guarantee. Tucker reiterated this view in 1803, noting that under the game laws in England, "the right of keeping arms is effectually taken away," while expressing his hope that in America, "the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."
The problem for Saul Cornell's argument is that England's game laws prohibited citizens, the vast majority not enrolled in the militia, from possessing firearms for private purposes. That Tucker saw the game laws as a contravention of the right protected by the Second Amendment is clear evidence that he understood that right to apply in America to all citizens and to weapons owned for both public and private purposes. Tucker's view mirrors that of Samuel Nasson and Saumel Latham Mitchel, cited by Cornell, and of a supporter of Samuel Adams in August 1789 who interpreted the House draft of the Second Amendment as a vindication of Adams's earlier proposed amendment that prohibited Congress from preventing "the people of the United States, who are peaceable citizens, from keeping their own arms." All of these early interpreters of the language embedded in the Second Amendment understood it to guarantee a right to keep arms that transcended "the inextricable connection" to militia service that Cornell posits.
If the view of the 2d Amendment advanced by Judge Posner, Justice Stevens, and Prof. Cornell were the original view of the framers, why didn't any of the framers or early commentators ever say so? And why was this new "civic rights" advanced by Stevens and Cornell rarely mentioned by anyone until about a decade ago?
After discussing originalism, Posner then writes about changed circumstances, an argument on which he is on much firmer ground.
BTW, Dick Posner and I are co-teaching a course in judicial behavior this coming school year (along with Bill Landes and Lee Epstein). Thus, I hope to explore his views on originalism in more detail in the next few months.
Posner on Heller: Is it All Politics?
The New Republic has posted an interesting essay by Richard Posner criticizing Justice Scalia's opinion in DC v. Heller. According to Posner, Heller "is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." A taste: The true springs of the Heller decision must be sought elsewhere than in the majority's declared commitment to originalism. The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn.
I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides. Posner is ridiculously wrong, of course: The fundamental truth of constitutional law is that Justices who agree with me are divining the true Constitution, while the rest are political hacks twisting the document to suit their policy preferences. Thus, my side is always principled. Thanks to Ed Whelan for the link. Ed also has his own comments on Posner's review over at Bench Memos.
Tuesday, August 12, 2008
"That's Not Blight. It's New Jersey":
William McGurn reports on a surprising landowner victory in an eminent domain case from the Garden State.
In the latest of man-bites-dog rulings from the state courts, a three-judge panel of the New Jersey Appellate Division actually sided with ordinary homeowners over a greedy local government and developer.
In their ruling, the judges unanimously reversed a lower-court decision giving the city of Long Branch a green light to pursue its redevelopment plan. That has put a serious crimp into the city's hopes for taking the homes of about a dozen longtime residents -- and turning them over to a developer to put up luxury condos in their place.
Anti-Drilling "Snake Oil":
The Washington Post opposes oil drilling in the Arctic National Wildlife Refuge (ANWR) and other ecologically sensitive areas. But the Post also opposes misinformation about offshore oil drilling spread by environmentalist groups and others. In particular, the Post takes aim at three myths about offshore driling:
Drilling is pointless because the United States has only 3 percent of the world's oil reserves. This is a misleading because it refers only to known oil reserves. According to the Interior Department's Minerals Management Service (MMS), while there are an estimated 18 billion barrels of oil in the off-limits portions of the OCS, those estimates were made using old data from now-outdated seismic equipment. . . . there could be much more oil under the sea than previously known. The demand for energy is going up, not down. And for a long time, even as alternative sources of energy are developed, more oil will be needed.
The oil companies aren't using the leases they already have. . . . The notion that oil companies are just sitting on oil leases is a myth. With oil prices still above $100 a barrel, that charge never made sense.
Drilling is environmentally dangerous. . . . According to the MMS, between 1993 and 2007, there were 651 spills of all sizes at OCS facilities (in federal waters three miles or more offshore) that released 47,800 barrels of oil. With 7.5 billion barrels of oil produced in that time, that equates to 1 barrel of oil spilled per 156,900 barrels produced. That's not to minimize the danger. But no form of energy is perfect or without trade-offs. Besides, if it is acceptable to drill in the Caspian Sea and in developing countries such as Nigeria where environmental concerns are equally important, it's hard to explain why the United States should rule out drilling off its own coasts.
Drilling — offshore or anywhere else — is no panacea, and the drilling debate should not distract policymakers from considering ways to encourage the economical development of alternative energy sources (such as with prizes). Yet, as the Post notes, "with the roaring economies of China and India gobbling up oil in the two countries' latter-day industrial revolutions, the United States can no longer afford to turn its back on finding all the sources of fuel necessary to maintain its economy and its standard of living." In other words, we'll still need new sources of oil in the near-to-medium term.
EPA's Chooses Ethanol Over Sound Environmental Policy:
Last week, the Environmental Protection Agency (EPA) denied Texas' request for a temporary reprieve from federal ethanol mandates. Under the energy law signed late last year, 9 billion gallons of ethanol and biodiesel must be blended into gasoline between Sept. 1, 2008, and Aug. 31, 2009, to meet a national Renewable Fuels Standard. Texas Gov. Rick Perry (R) sought to reduce that to 4.5 billion gallons, on the grounds that the mandate is hurting livestock producers and increasing food costs. In denying the request, the EPA explained that it did not believe the mandate was having too great an impact on food and fuel prices, and that whatever costs the mandate imposed were outweighed by the mandate's benefit. The ethanol mandate "is strengthening our nation's energy security and supporting Americans' farming communities," Administrator Stephen Johnson explained. Funny thing, I thought the EPA's job was environmental protection, not subsidizing farmers or promoting something as nebulous as "energy security." The mandate cannot be justified on environmental grounds, however, as the ethanol mandate does more harm than good.
Texas Governor Rick Perry is none too happy with the EPA's decision. He writes in today's WSJ: the diversion of our corn supply from grocery stores to gasoline pumps has caused the price of corn to spiral out of control. Corn prices were once driven by market forces. Today they are artificially driven up
by a government mandate. In 2004, before the mandates were imposed, the cost of corn hovered around $2 per bushel. Now it is close to $8 per bushel.
This is driving up the cost of staple food items at the grocery store. And it is also driving up the price of corn-based feed, devastating the livestock industry to the point that Texas cattle feeders have been operating in the red since 2007. . . . .
Denying Texas's request is a mistake that will continue to force families to bear a heavier financial burden to put food on the table than necessary and harm the livestock industry.
Supporters of the ethanol mandate have their hearts in the right place if they want to diversify this nation's fuel supply. But artificially propping up an |