[David Kopel, March 31, 2008 at 11:33pm] Trackbacks
On March 18, I joined the lawyers
for Dick Heller at the counsel table for oral argument
in District of Columbia v. Heller. The counsel
table has four seats, and there were three lawyers
representing Mr. Heller, so Alan Gura, the lead lawyer
in the case, invited me to sit with them at the counsel
table.
The practical function of the lawyers who are not
presenting the oral argument is to write notes for the
arguing lawyer, in case a tangential issue comes up.
During the presentations by Walter Dellinger (for D.C.)
and Paul Clement (for the Solicitor General) Justice
Stevens asked questions which pointed out that of the
Founding Era state constitutions, only two (Pennsylvania
and Vermont) specifically mentioned self-defense as one
of the purposes for the right to arms. So I gave Gura a
note pointing out that courts in Massachusetts and North
Carolina had interpreted their state constitution "for
the common defence" language as an encompassing a right
to arms for legitimate purposes, including defense
against criminals. During Gura's presentation, Justice
Stevens raised the point again, and Gura began to detail
the case law, but Justice Stevens waved him off, stating
that he was interested only in the constitutional texts.
After oral argument in any case, it's always possible to
think about how a particular answer could have been
given better; but I think that Alan Gura did an
excellent job. He was solid, well-informed, and
persuasive.
Some observations from a first-timer in the Supreme
Court:
The counsel table is quite near the bench. It's an
interesting experience to see the Justices up close and
personal, after having spent so many months trying to
discern their modes of thought.
It is indeed awe-inspiring to hear the Marshal of the
Court announce: "Oyez! Oyez! Oyez! All persons having
business before the Honorable, the Supreme Court of the
United States, are admonished to draw near and give
their attention, for the Court is now sitting. God save
the United States and this Honorable Court!"
Before the argument, Walter Dellinger, a true Southern
gentleman, came over to shake our hands. He graciously
told Gura that Gura would do "great," and said that his
own very first oral argument had been his best.
Also awe-inspiring are the Court's chambers, with a
beautiful high ceiling, and friezes on all four walls
depicting great law-givers, as well as mythical
characters personifying law-related virtues such as
wisdom.
Based on the oral argument, it is possible to identify a
few of the amicus briefs that were particularly
influential. As Respondent, Gura would have been
foolhardy to argue that the Court's leading precedent,
United States v. Miller needed to be altered in
any respect. That argument was instead in Nelson Lund's
excellent brief for the Second Amendment Foundation,
and was apparently adopted by Justice Kennedy.
Justice Kennedy's view that the militia clause of the
Second Amendment emphasizes the importance of the
militia, but does not limit the rights clause was
supported not only by
Gura's brief, but also by a careful textual analysis
in the Lund brief, and by a strong historical
presentation in the
Academics for the Second Amendment brief, written by
David Hardy and Joseph Olson.
Gura was asked at one point if there was any
contemporaneous evidence indicating that self-defense
was a purpose of the Second Amendment. He began by
pointing to the 1787
Dissent from the Pennsylvania ratifying convention,
which had urged that the proposed U.S. Constitution be
amended to state: "That the people have a right to bear
arms for the defence of themselves and their own state,
or the United States, or for the purpose of killing
game; and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or
real danger of public injury from individuals; and as
standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up: and that the
military shall be kept under strict subordination to and
be governed by the civil powers."
Justice Souter retorted that the Pennsylvania Dissent
was only concerned about the militia. Given the text of
what the Pennsylvanians said, I find this view
implausible; the better argument on D.C.'s side (made
by, among others, Dennis Henigan of the Brady Center)
seemed to be that if James Madison wanted to protect
more than militia-only uses of firearms, he could have
copied Pennsylvania's language, but he chose not to.
Nevertheless, Justice Souter seemed to have been
persuaded by arguments in a
historians' brief by Carl Bogus, which cited the law
review scholarship about Pennsylvania by Nathan
Kozuskanich. Kozuskanich was also cited in D.C.'s
briefs, and in several of D.C.'s amicus briefs.
Michael Bane's
Down
Range TV has a collection of various lawyers,
academics, and other Second Amendment advocates,
discussing the oral argument. He also has a link to the
oral argument audio. C-Span's Real Video coverage of the
press conference after the brief (about 21 minutes,
equally divided between the two sides) is
here. A 15 minute iVoices.org podcast in which I'm
interviewed about the oral argument is
here.
For over a quarter-century, pro-Second Amendment lawyers
such as Stephen Halbrook, Bob Dowlut, Don Kates, and
David Hardy had dedicated their careers to making March
18, 2008, possible. Moreover, without the work of
millions of pro-Second Amendment activists over the
years, there would have been no chance of victory,
however persuasive the evidence of original meaning
might be. If the gun prohibition lobby had succeeded in
its plans to use the 1976 D.C. ban to pass handgun bans
in many cities and several states, it is doubtful that
the Supreme Court would have the institutional will to
strike down so many laws. And it also seems unlikely
that most of the Justices who might have been appointed
by a President Kerry, Dukakis, Mondale, or Carter would
have been willing to declare even the D.C. ban
unconstitutional.
Yet while the work of millions of citizens made March 18
possible, it was Alan Gura who had to finish the job
alone. Our young Skywalker performed magnificently, and
I hope that by the Fourth of July, the law-abiding
citizens of our nation's capital will once again enjoy
their rights to own handguns, and to use firearms in
defense of their homes and families.
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.
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.
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.
Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel's office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available here.
[David Kopel, March 9, 2008 at 5:18pm] Trackbacks
In the Supreme Court's Second
Amendment case District of Columbia v. Heller, DC
and its amici frequently cited a then-forthcoming
Rutgers L. Rev.
article by Nipissing University assistant history
professor Nathan Kozuskanich, a protégé of Saul Cornell.
DC's
reply brief, filed last Wednesday, cites another
unpublished Kozuskanich
article, this one in the U. Penn. Journal of
Constitutional Law.
A pair of new postings by Clayton Cramer analyze the
J. Constl. L. article, and the Rutgers article.
To call the articles "law office history" might be
unfair to law offices.
Regarding the J. Const. L. article, Cramer
explains how Kozuskanich's theory (that the right to
arms in early Pennsylvania was only for collective
defense of the state) depends on ignoring other
evidence, and on strained, implausible readings of the
evidence that Kozuskanich does present.
For example, Kozuskanich points to the prosecution of
Dr. James Reynolds for "assault with intent to commit
murder." Kozuskanich claims that the prosecution proves
that Pennsylvania's constitutional right to arms did not
apply to individual self-defense.
But as Cramer notes, Dr. Reynolds was never charged with
a crime for his mere carrying of the pistol; he was
charged with a crime because he pointed the pistol and
threatened to shoot someone. The book American State
Trials observes that Reynolds "contented himself
with carrying a pistol. And in this he was justified by
every law, human and divine." Certainly no-one at the
trial contended otherwise; so Kozuskanich's claim that
the prosecution for attempted homicide proves that there
was no individual right to own and carry guns is
implausible.
The prosecution's theory of the case was that Dr.
Reynolds, who was in a public place, could have safely
retreated from threatening mob, and that Blackstone's
standards for self-defense require such retreat. The
jury, however, acquitted Dr. Reynolds.
The Reynolds case is a good example of the beginning of
the split between the more restrictive British standards
of self-defense, and the new, more liberal American
standards. That conflict on self-defense standards
continues to the present day. But arguments about the
boundaries of self-defense (such as whether there is a
duty to retreat if possible) certainly do not disprove
the existence of a constitutional right of individuals
to have guns for personal self-defense.
Joseph Olson and Clayton Cramer, in
an article in the Georgetown Journal of Law and
Public Policy offer numerous examples of Founding
Era usage of "bear arms" to mean carrying guns in a
non-military setting. Tellingly, Kozuskanich simply
ignores the Olson/Cramer evidence, for that evidence
demolishes Kozuskanich's theory.
Cramer's
critique of the Rutgers article observes that
Kozuskanich actually cites Michael Bellesiles, who was
forced to resign from Emory after the proof (brought
forward by Clayton Cramer, James Lindgren, and others)
that Bellesiles had falsified his data, including his
data on the very point for which Kozuskanich cites him
(the supposed scarcity of guns in early America).
Article XIII of the Pennsylvania Constitution of 1776
guaranteed "That the people have a right to bear arms
for the defence of themselves and the state." The
opening language, "That the people have a right", was
identical to Articles X, XII, and XVI, which guaranteed
the individual rights to freedom from unreasonable
search, free speech/press, and petition/assembly.
Kozuskanich quotes extensively from the Pennsylvania
Convention's debates on Article VIII of the
Constitution--affirming that everyone is bound to serve
in the militia, or pay "an equivalent thereto" (that is,
a fee whereby conscientious objectors could be excused
from serving personally). Kozuskanich claims that the
Article VIII debates prove that there was no individual
right to arms for self-defense. As Cramer notes, this is
silly. The Article VIII debates were not, of course,
about an individual right, which was the subject of a
separate article; the Article VIII debates involved the
scope of a duty.
Kozuskanich's approach to Pennsylvania is similar to the
approach that his mentor, Prof. Cornell, uses for St.
George Tucker (the leading constitutional scholar of the
Early Republic): quote Tucker's words about
congressional militia powers arising from Article I of
the federal Constitution, and claim that those words
prove that the Second Amendment does not involve arms
for personal defense. (For more on this latter point,
see Stephen Halbrook's
article in the Tenn. J. L. & Pol.
Last May, after
the D.C. Circuit
Court of Appeals
ruled in
District of
Columbia v.
Heller that
the D.C. handgun
ban violates the
Second
Amendment,
Harvard Law
School Professor
Larry Tribe was
contacted, and
asked if he
would like to
write an amicus
brief in support
of Heller. Tribe
wrote back to
Heller's
attorneys that
he did not want
to do an amicus
brief, but he
would be
interested in
exploring his
playing a "more
central role"
in the case.
Tribe urged that
he could be
effective with
the center and
left-of-center
Justices.
The only "more
central role"
than that of
amicus-writer is
that of
co-counsel for
Respondent. And,
obviously, the
only position of
a counsel for
Respondent would
be in favor of
affirmance of
the favorable
judgment below.
Of course a
counsel might
offer a
different theory
for why the
decision should
be affirmed.
Today in the
Wall Street
Journal,
Professor Tribe
penned
an op-ed
urging that the
decision of the
Court of Appeals
be reversed; he
argued that the
Second Amendment
guarantees a
real individual
right (not
militia-men
while in militia
service), but
declared that a
complete ban on
handguns passes
"any plausible
standard of
review."
Professor Tribe
has the right to
change his mind,
but the air of
forceful
certainty with
which he today
argues for
reversal seems
inconsistent
with his
unrequited offer
from ten months
ago to play a
"more central
role" in
securing
affirmance.
In this Russian-language radio broadcast for Radio Free Europe/Radio Liberty, I add my own thoughts to the controversy. Synopsis: the issue hasn't been clearly settled by the courts, but most legal scholarship supports McCain's eligibility. His eligibility is strongly supported by the fact that he was born on American soil, since he was born in the Canal Zone. The clause was intended to prevent dual loyalty, which is not an issue in McCain's case, since he was an American citizen at the moment of his birth, and he was never a citizen of Panama or any other nation. Thus, this is an easier case than someone who was born on foreign soil, and who received foreign citizenship as a result of that birth. (E.g., a child born to American private-sector workers who were living in Ireland at the time of the birth; although I argue that even in this case, most legal scholarship would favor that child being considered "a natural-born citizen.")
- "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty":
- McCain's birth, Russian language version:
- The meaning of "natural born."
- "Natural-Born Citizen":
I've seen
various Internet
sites claiming
that in Iowa,
Senator Obama
called
Palestinians
"the most
oppressed people
on Earth." Can
commenters
supply
information
about an
original source
(rather than a
third-hand
Internet claim)
about whether
Senator Obama
really said
this? Even if
one accepts the
theory that
Israel is
entirely
responsible for
Palestinian
"oppression,"
and that the
Palestinians
(unlike, for
example, the
East Germans in
1946) bear no
responsibility
for their
current
situation, it
seems
preposterous for
anyone to
believe that
Palestinians are
more oppressed
than, say,
Darfuris or
North Koreans.
Accordingly, I
hope that the
quote is just an
unfounded
Internet rumor.
Update:
Impressively
fast reader
comments explain
that Obama never
said such a
thing; the
"quote" is a
very garbled
version of
something he did
say, and which
is a very
mainstream
observation.
Further update:
I participate in
the ListServ of
the National
Council of
Editorial
Writers. One of
the main
purposes of the
ListServ is to
provide
information
about astroturf
letters to the
editor, or about
other LTE
issues. I sent a
memo to the
ListServ
explaining that
the purported
Obama quote is
fake; thanks to
VC commenters
for helping to
expose the truth
about the false
quote.
[David Kopel, February 23, 2008 at 6:29pm] Trackbacks
That's the topic of my media column in today's Rocky Mountain News. The column also expresses skepticism about the benefits of Gannett buying Colorado's leading college newspaper, about media coverage of Obama and Clinton, and about Maureen Dowd.