Pretend "Gun-free" School Zones: A Deadly Legal Fiction. Just uploaded on SSRN, and submitted to law reviews. Sixty-three pages examining the empirical evidence regarding the licensed carrying of firearms by professors, schoolteachers, and adult students.
In this week's National Journal poll of political bloggers, the first topics was "How should Congress respond to the recent deficit projections?" The first question thereunder produced a rare perfect split between the Left and the Right. One hundred percent of the Left said that Congress should "Pass something close to President Obama's budget," and 100 percent of the Right said not. The options of "Delay some major Obama initiatives" and "Cut the growth in entitlements" also yielded huge splits, although not quite 100% vs. 100%. "Cut the growth in defense spending" got 80% support on the Left, and 35% support on the Right.
My comment: "The congressional majority's handling of the 'stimulus' -- particularly in forcing votes before the conference report could even be read -- evoked the last days of the Roman Republic, with a legislature abdicating governing responsibility to an all-powerful executive. At the least, the rank and file of both parties should insist on proper legislative procedures when the budget is considered, so that every legislator (or his staff) has time to read the budget before every vote."
The second topic was "What effect will Obama's online mobilization effort have on Democratic efforts to pass the budget?" On the Left, 94% said it would help either a lot or a little. Forty-two percent on the Right felt the same way; within both groups, "a little" was by far the leading choice. I voted "a little", and commented: "Because the budget promotes even more of the same old failed policies of D.C. (wasteful pork spending and reckless deficits) rather than the change that Obama promised, it will be interesting to see whether the Obama online network is so devoted to the cult of personality that they will mobilize in large numbers."
So claimed the New York Times last week, relying heavily on UCLA law professor Adam Winkler. In an article in today's The New Ledger (a on-line newspaper and news aggregator that started publication in January), I argue that the Times missed many instances in which Heller has had a direct and significant impact--in getting rid of oppressive gun laws, or in requiring the fairer enforcement and application of others.
In this week's Second Amendment Podcast, Jon Caldara and I discuss three recent steps the Obama administration has taken against firearms: canceling Department of Defense sales of once-fired brass; strangling the armed pilots program; and the new National Park Service rule against lead in national parks. The show was taped on Tuesday, and, happily, the first problem was fixed on Wednesday, as I explained in a postscript.
This week's National
Journal poll of top
political bloggers
finds some broader
areas of agreement.
Asked to "Grade the
performance of the
president's economic
team in inspiring
public confidence,"
neither the Left nor
the Right thought
that the team was
doing a good job,
although there was
disagreement about
how bad they were
doing. The Left gave
Team Obama a C+,
while the Right
awarded an F. My
comment: "Like
McCain, the Obama
team is right that
the economy is not
nearly as bad as the
hysterics contend.
But the Obama team
itself was a prime
promoter of hysteria
-- not only during
the campaign, but
also during the push
for the so-called
'stimulus,' which
was based on
aggressive use of
the politics of
fear. So at this
point, some people
are understandably
skeptical when Obama
now tells us: 'Never
mind. The economy is
fundamentally sound.
Trust us. Stop all
those Tea Parties.'"
Question two was
"How much will
bailout fatigue
hamper President
Obama's ability to
advance his economic
agenda?" Sixty-four
percent of the Left
said "a great deal"
or "a moderate
amount," and did 88
percent of the
Right. My comment:
"At this point, it
is difficult to
believe that the
Obama administration
is competent at
spending money
efficiently, or much
interested in
adhering to its
admirable campaign
promises in favor of
transparency and
against pork and
earmarks. Given the
record so far,
giving the Obama
administration even
more money to spend
-- especially on
something as
monumental as
restructuring
American health care
-- would be like
putting Kathleen
Blanco in charge of
disaster relief."
Not that the
performance of the
Bush
administration--either
in its handling of
Katrina or of the
corporate welfare
bailouts--was any
better.
[David Kopel, March 19, 2009 at 3:05pm] Trackbacks
There are several
studies of how often
police officers miss
the criminal whom
they are shooting
at. Are there any
studies or data
regarding how often
those missed shots
injure or kill an
innocent bystander?
I suspect the rate
is very, very low.
Second, the
discussion about
whether people with
CCW licenses commit
crimes at a high
rate (as the Brady
Campaign and the
Violence Policy
Center often assert)
tends to involve
data from Florida
and Texas. Do VC
readers know of data
from other states?
[David Kopel, March 18, 2009 at 1:48am] Trackbacks
Enjoy
this version of
"A
Nation Once Again,"
voted the world's
most popular song by
BBC listeners.
This great and
timeless song fills
me with joy about
nations such as
Ireland, Israel, and
the United States,
which have won their
independence, and
with hope for
Taiwan, which seeks
to perfect its
independence. May
the great example of
the Irish freedom
fighters of 1916-21
(and in the
centuries before)
give strength to the
all the oppressed
people around the
world--in Tibet,
Darfur, and many
other places--who
still seek their
right of
self-determination,
and to live in peace
in the community of
nations.
The Irish revolution
was inspired by the
American Revolution,
and, as "A Nation
Once Again"
illustrates, by the
brave Spartans at
Thermopylae
("three hundred
men") and by the
Roman story of
Horatio at the
Bridge ("and
three men"). "A
Nation Once Again"
was written by an
Irish Protestant,
showing that Irish
nationalism at its
best, is
non-sectarian and
inclusive, as the
Proclamation of the
Republic
affirmed. The great
liberation, from the
Exodus to the
present, is the
common heritage and
the common hope of
all freedom-loving
peoples.
God Save Ireland,
and
God Bless America,
"For, Freedom comes
from God's right
hand, And needs a
Godly train."
Last week, two
student leaders of
the Virginia Tech
chapter of
Students for
Concealed Carry on
Campus were
interviewed in a
podcast by the
Independence
Institute's Jon
Caldara. It's an 18
minute podcast, and
very powerful, not
only in the personal
stories that are
told, but in the
calm logic of the
SCCC presentation.
Here at the
Independence
Institute, we have
started a weekly
series of podcasts
on Second Amendment
issues. Some recent
topics have been:
international data
showing the
countries with most
guns tend to have
the most civil,
political, and
economic freedom; my
law review article
in progress on
campus carry reform;
the call to ban
"assault weapons"
because of
problems in Mexico;
Education Secretary
Arne Duncan; and
the Independence
Institute's
empirical brief
in the Chicago
handgun ban appeal.
The archive of all
our
iVoices.org
podcasts on Second
Amendment issues is
here.
[David Kopel, March 6, 2009 at 11:56am] Trackbacks
In
this week's National
Journal poll of
political bloggers, we
see one of the largest
splits between Left and
Right bloggers ever
recorded in this this
poll (which is several
months old). The first
topic was a four part
question about whether
Obama was over-reaching
with global warming tax,
health care spending
increase, doubling the
national debt, or
cutting itemized
deductions for high
earners. On the Left,
the answer was a 100%
"no" on three of those,
with a 92% "no" on the
debt. On the Right, the
answer was 86-93% "yes"
on all of them.
I voted "yes" on
everything, and wrote:
"He's even worse than
George W. Bush on wild
spending increases and
reckless deficits.
That's like being even
fatter than Fat Albert."
The second question was
whether Obama was
governing more to the
left or more to the
center than expected.
For the Left bloggers,
the plurality winner was
the write-in: "about as
expected." Things were
about equally divided
between the other two
choices.
For the Right bloggers,
"more to the left" was
the choice of 73%. I was
among those who was
surprised, and wrote:
"Almost as far left as I
feared he might be
during the campaign,
based on his record as
an elected official.
During the transition
period, I mistakenly
thought that some of the
appointments portended a
more centrist approach,
but that has certainly
not been the case on
fiscal policy."
Do readers have recommendations for good software for text to speech conversion? I would like to take some of the articles I have written, for which I still of course have the electronic files, and make them available in MP3 format. The project only seems worth doing if the resulting MP3 file is high quality. So what software should I investigate?
Today's
on-line Columbia Journalism
Review features an article
titled
Rocky Mountain, Bye: Rocky
Mountain News staffers share
their thoughts on the paper’s
closing. Yesterday the CJR
asked Rocky staffers to send in
a paragraph or so of their
thoughts. There are a wide
variety of reactions.
A small number of Rocky
writers, including the excellent
sports columnist Dave Krieger
(whose CJR comment expresses his
frustration with Scripps'
corporate priorities)
will be moving to the
Denver Post. As many of you
know, I've never been a
full-time employee of the
News, just a bi-weekly
columnist; my regular job is
Research Director of the
Independence Institute, one of
the oldest state-level think
tanks in the U.S. I wish that
the Ind. Inst. had a few million
dollars sitting around in a
vault, so we could hire some of
the great journalists who will
be losing their jobs.
The CJR's request for a reaction
put me in a historical mood:
It’s been a very high-tech day, with the Rocky posting near-instant video coverage of its own death. Yet today evokes for me a picture of Italy around 450 A.D., with declining literacy, and the crumbling of what used to be the great institutions of civic engagement. As a media columnist, I’ve written often about media bias, which is a very serious problem, but which is not the primary cause of the current collapse of the newspaper business. We have a society that reads less and less, and which passively watches more and more video. Over the long term, I expect that quality coverage of national business and national politics will survive, because there will be enough highly-literate readers who will pay the premium prices necessary to support sophisticated reporting. But I am not at all confident that there are enough readers who will pay what is necessary for the existence of good coverage of local news. At a time when governments are growing more and more powerful, we are losing a crucial part of our checks and balances. "Quis custodiet ipsos custodes?" as they used to say. A healthy society needs someone to guard us from the government "guardians." Newspapers have been far from perfect in performing this vital, protective civic role, but more protection is better than less. With the Rocky's demise, Colorado is going to have much less.Today's final edition of the Rocky Mountain News, available, of course, for free on the web, includes a 52-page special wrap-around section about the nearly-150-year history of the paper. It would have been a great addition for the Rocky's 150th birthday, 55 days from today. But I guess the birthday edition had to come a little early, combined with the funeral edition.
In this
week's National Journal
poll of leading political
bloggers, 76% of
Left-leaning bloggers and 100%
on the Right are either
"somewhat concerned" or "very
concerned" that federal stimulus
money will go to people who
don't deserve it. I was among
the very concerned: "Taking
money from responsible and
prudent homebuyers and renters
and giving the money to reckless
borrowers and lenders will
promote more irresponsible
borrowing and lending in the
long run."
On the question of whether
another stimulus will be
necessary later this year, 88%
ofthe Left and 40% of the Right
thought so. I thought not:
"Since the first package was not
'necessary' but will likely be
inflationary and economically
harmful, it is unlikely that a
second round of even more debt
could be necessary."
Earlier this week, National
Journal published an
annotated version of the
President's State of the Union
speech. Various portions of the
text are marked to show where
they relate to a campaign
promise, mark a break with the
Bush administration, etc. There
is also highlighting for the
reaction of pundits, bloggers,
and experts to particular items
in the text. I comment on the
line: "And we will expand our
commitment to charter schools."
My view: "Constitutionally,
Congress and the president have
no business trying to manage
local public schools. But as
long as the federal government
is involved, promoting charter
schools is an excellent way to
improve public education. More
diversity, more choice, more
accountability. A win-win-win."
My farewell column for the Rocky Mountain News:
Unfortunately, the demise of the Rocky is more than a 50 percent diminution in newspaper quality in Denver. There's the direct loss of the stories which the Rocky covered and the Post didn't, or which the Rocky investigated thoroughly and the Post only superficially. But there's also the less visible loss of how competition with the Rocky has made the Post a better paper throughout all of that paper's own venerable history. Having two newspapers is more than twice as good as having just one, because each newspaper spurs the other to better work....
With the Rocky gone tomorrow - and the Post perhaps gone within two years - who is going to report the news in Denver? The TV and radio stations only report a fraction of the number of stories that go into a daily newspaper, and the reporting is much less detailed than what's in the papers.
It's possible to have a republic without newspapers. But we've never done it in America, and there's no guarantee that we'll succeed at doing it.
Tomorrow's
edition of the Rocky Mountain
News will be the last. Founded
in 1859, the Rocky is the
oldest business in the Denver, and
its demise comes a few weeks short
of its 150th birthday. The paper has
been part of my family since before
I was born. My father was an editor
for the paper in the 1950s; I've
been a biweekly media columnist
there since 2001. The Rocky's
coverage of today's announcement is
here. Note the little icon on
your browser's tab.
In an iVoices.org podcast taped this
afternoon, Jon Caldara and I
discuss what a terrible loss
this will be for Colorado. A few
weeks ago on Jon's TV show
Independent Thinking (channel 12
KBDI, 8:30 p.m. on Fridays), Jon
interviewed Rocky publisher
John Temple. Temple accurately
predicted that the Rocky would not
survive until the end of the month.
You can watch the interview
here.
In today's
National Review Online, I
suggest that it would be
politically self-defeating for Sen.
Gillibrand to reverse her position
on Second Amendment issues.
As my article explains, in 1996
incumbent Republican Representative
Daniel Frisa faced a challenge from
Carolyn McCarthy, and so he did an
about-face on gun issues, while
claiming that he had been consistent
all along. Thus, "Voters could see
that McCarthy had a sincere and
consistent position on gun control,
while Frisa changed his position
based on transparent political
calculation. Frisa’s flip-flop
undoubtedly made voters wonder which
of his other supposed convictions he
would abandon when it became
politically useful. McCarthy crushed
him in the general election by 58 to
41 percent."
Gillibrand's strong support for the
Second Amendment is likely an
advantage in the general election,
and a flip-flop would doom her in
the primary.
That's the
topic of my
new article for America's 1st
Freedom, a NRA member magazine.
Of course the Second Amendment is
not the most important issue by
which Secretary of State Clinton
will be judged, but as Secretary of
State, Mrs. Clinton will, like her
predecessors, have the ability to
affect the domestic exercise of
constitutional rights by American
citizens. A 12 minute iVoices.org
podcast on the topic is also
available.
Part of a series which includes
Attorney General Holder (article,
podcast), and Chief of Staff
Emmanuel (article),
with more installments in the works.
This week's
National Journal poll of leading
political bloggers asked for grades
for performance thus far of
President Obama, House Republicans,
and House Democrats. For Obama, the
Left awarded a B, and the Right a D.
I was one of the D voters, with this
comment: "'Stimulus' was a
bait-and-switch which broke Obama's
promises of transparency. Moving the
census to the White House from
Commerce is Chicago-style sleaze.
When I voted for Obama over Clinton
in the Colorado caucus, I was
mistaken to think the result would
be cleaner government."
For the House Republicans, the
grades were reversed, with the the
Left giving a D and the Right giving
a B. I gave them an A: "United
against intergenerational theft and
reckless deficit spending. Too bad
they didn't do the same under Bush."
Grades were somewhat closer on
Congressional Democrats. The Left
said C+, while the Right said D. My
comment: "Spending other people's
money like sailors on shore leave.
Waxing indignant about mortgage woes
and greed while leaving Rangel,
Frank and Dodd in chairmanships. At
least they get an A+ for chutzpah."
About 1,700 of Spain's 4,400 judges are going on strike, although they will continue to process some particularly urgent matters. Details here (in Spanish, from the excellent web newspaper ElDiarioExterior.com). The judges argue that they are underpaid and overworked; they want 1,200 new positions to be created over next five years, to move Spain closer to the European Union average, and to help with what the judges say are overflowing dockets. Comments are welcome from readers who know about the Spanish judiciary.
Here's a new
project to utilize the immense
collective mind of VC readers: an
English translation of the Mexican
firearms statute. The Mexican law,
in Spanish,
is here. My translation thereof
into English
is here. Neither the intern who
did the first round of the
translation, nor I, speak Spanish as
a native language. Indeed, my
Spanish is extremely primitive; I
know less than an American middle
schooler with one year of Spanish.
Although I am developing an
interesting vocabulary, of words
such as "fuego circular" (rimfire).
The initial translation was done via
machine, and then reviewed and
modified by very inexpert humans. So
I solicit readers with good Spanish
skills to provide suggestions for
improvements in any or all of the 91
Articles of the Mexican firearms
law. Please focus on improving the
translation, and not on arguing
about policy questions involving the
law.
BTW, the dictionary I used was the
Larouse College edition, which is
high quality, but did not have the
definitions for some words (e.g., "cumuneros"
"lanzagases"), or had general
definitions for some words, but
perhaps lacked the tertiary
definitions that were needed here.
Do readers have any good suggestions
for more advanced Spanish-English
dictionary? And, clearly, web-based
translation programs are great
because they're free, but they
obviously have trouble with complex
sentences or vocabulary. Any
recommendations for a software
program for Spanish-English
translation? Muchas gracias,
lectores inteligentes.
p.s. If you're looking for the spots
that caused me the most trouble,
just look for the ? in [brackets].
BTW, I would also be grateful for a
link to the Mexican Firearms
Regulations if there is an
on-line version. And for the June
2009 report to the Mexican Senate on
arms smuggling.
This week's
National Journal poll of leading
political bloggers find over 90% of
Left-wing and Right-wing bloggers
being either "less encouraged" or
having "no change" in their hopes
for bipartisanship in Washington.
(And the "no change" people never
had much hope in the first place.) I
was among the tiny minority that was
"more encouraged," although not
because I think that Obama's current
course is going to attract
Republican support. Rather, "The
opposition of some Blue Dogs to the
House version of the 'stimulus'
(actually just a long-term spending
spree, not a short-term stimulus)
raises hope that more and more
centrist Democrats will join in
bipartisan opposition to
irresponsible and overreaching
measures pushed by Pelosi/Obama."
Should the U.S. send 30,000 more
troops to Afghanistan? About 2/3 of
the Right and 1/3 of the Left
thought so. My view: "President Bush
led us to victory in Iraq. Let's
hope President Obama does the same
in Afghanistan." I do agree with
bloggers who suggested that "more
troops" is not the only issue;
improved strategy and tactics are
also important.
When newspapers cease to exist, who will supply the news for all those folks who claim they don't need newspapers because they get their news on the Internet? I conduct a small study of the question in my latest Rocky Mountain News column, Dying newspapers, vanishing coverage.
This week's
National Journal poll of leading
political bloggers asked, "How much
damage have controversies
surrounding the nominations of Tom
Daschle, Timothy Geithner and
William Lynn done to President
Obama's image?" On the Right, the
leading choice was "some", with
about a quarter answering "a great
deal" or "only a little." On the
left, the leading choice was "only a
little" (53%), while "some" got
about a third.
My view: "Daschle's tax avoidance
was impossible to defend as minor or
just an honest mistake. It helps
Obama in the long run that he will
not be in the Cabinet, since he
would have been a visible link
between the administration and the
Rangel/Dodd/Frank congressional
culture of corruption. Lynn broke no
law (even though his lobbying work
offends the far left), and
Geithner's original error really was
caused by his tax software (as
demonstrated by my Volokh Conspiracy
colleague
James Lindgren)." I think
Daschle is a big setback this week,
but it will eventually be
forgotten--and having someone like
Tennessee Governor Phil Bredesen
rather than Daschle will be much
better for Obama (and the country)
in the long run.
The second question was: "Based on
events of recent weeks, how much
sway do you think President Obama
will have over congressional
Democrats?" On a 1-5 scale, the Left
voted for 4.0, and the Right for
3.2. My vote was a tenative 4. "We
don't know yet for sure if
Pelosi/Obey turning the 'emergency
stimulus' into a massive permanent
increase in ordinary domestic
spending was contrary to Obama's
wishes. If so, it suggests that
Obama's influence over Congress may
be weak. If Obama likes what the
so-called 'stimulus' has become,
this suggests that the new
administration might be as fiscally
irresponsible as the previous one."
Just filed before
the 7th Circuit Court of Appeals,
an amicus brief on behalf of the
International Law Enforcement Educators
& Trainers Association, Independence
Institute, The Heartland Institute,
Prof. David Bordua, Prof. William Tonso,
and the Law Enforcement Alliance of
America.
This is a Brandeis Brief, providing
social science evidence showing that
guns in the hands of law-abiding people
make a substantial contribution to
public safety. The brief also explains
why civilian handgun ownership helps so
much with the training of new police
officers. Finally, the brief provides
data from Chicago showing that crime in
Chicago (particularly, burglary and
assault) sky-rocketed after the ban was
enacted, and that the percentage of
Chicago homicides committed with
handguns has nearly doubled.
Because of the word limits in the 7th
Circuit, this Brandeis brief is much
shorter than
the original Brandeis brief, which
was 113 pages. But I'm proud that the
2009 brief upholds the freedom-loving
spirit of Justice Brandeis, who stated:
"We shall have lost something vital and
beyond price on the day when the state
denies us the right to resort to force."
[The Brandeis Guide to the Modern
World, ed., Alfred Lief (Boston:
Little, Brown & Co., 1941), p. 212.]
A comprehensive set of all the court
documents in the Chicago handgun ban
cases is available
here.
[David Kopel, February 5, 2009 at 2:04pm] Trackbacks
The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.
One major problem
currently faced by automakers is that they
are stuck in economically irrational
permanent contracts with franchised auto
dealers. These arrangements were not created
by bargaining, but by legislative fiat. My
father Jerry Kopel explains the problem in
Colorado, and a new bill which would make
the problem even worse.
The column originally ran in the
Colorado Statesman, Colorado's weekly
political newspaper.
My father served 22 years in the Colorado
House of Representatives, representing
northeast Denver. One of the most liberal
members of the legislature, he was (and is)
a strong champion of consumer rights. Among
other things, he was the lead sponsor of
Colorado's adoption of the Uniform Consumer
Credit Code. As a consumer advocate, he
observed how professional licensing is
frequently used as a tool to exclude
competition, rather than to guarantee
professional quality. Accordingly, he
sponsored the first Sunset law in the
nation, requiring that professional
licensing boards automatically expire after
a period of years, unless they are renewed
by an affirmative act of the legislature.
In this week's National Journal poll of
leading political bloggers, the Left
and Right have similar views on how
much longer the recession will
continue. A plurality expect 13-23
months. Zero expect less than six
months. About a quarter expect 7-12
months, and about a third expect 24
months or longer. I was in the
latter group, and wrote, "Like
FDR/Hoover, Obama is pursuing
policies that may deepen and extend
the economic problem in the long
run."
Would it be good if Republicans
supported the "stimulus"? Left
bloggers were evenly split, whereas
Right bloggers unanimously said
"no." I voted No, "For the same
reason it would be desirable not to
have significant Democratic support:
borrowing an extra trillion dollars
a year and spending much of it on
pork is a continuation of the
reckless borrowing and irresponsible
spending (at both the federal and
the personal level) that got us into
this mess in the first place."
A recent statement by the International Action Network on Small Arms, the world's leading gun prohibition lobby, states that the Arms Trade Treaty, currently being drafted in the United Nations, would prohibit arms sales to Israel and to Hamas. Rebecca Peters, the head of IANSA, accuses both Hamas and Israel of violating international law, and explained that the ATT would outlaw weapons sales to both parties. According to the press release:
[Peters said:] "Yet some states continue to supply weapons to the protagonists. Some of these transfers are 'legal', meaning approved by the exporting and importing governments. The most obvious case here is the continuing US supply of arms to Israel."
Last week IANSA reported that the US tried to ship 989 containers of ammunition, explosives and other munitions to Israel, through European ports.
A strong and effective global Arms Trade Treaty would have prevented these transfers, and more importantly would have prevented transfers in the past few years, reducing the protagonists' capacity to wage their deadly war.
Under the rules of war, attacks should not be indiscriminate, and precautions must be taken to minimise civilian casualties. Around 1300 Palestinians were killed in the recent attacks by Israel on Gaza. Most of these victims were non-combatants, including nearly 500 children. Israel claimed these attacks were militarily necessary, because the military targets were located within civilian settlements. But the massive number of casualties resulted in part because Israel failed to give sufficient warning to civilians.
Over at Legal
Insurrection, Cornell's William
A. Jacobson is making some excellent
arguments against an Illinois Senate
conviction of Governor Blagojevich.
To wit: the evidence against
Blagojevich consists almost
exclusively of an FBI agent
affirming the authenticity of highly
selective excerpts from surveillance
tapes which he provided via an
affidavit. Notably, Agent "Cain
refused to answer whether the
excerpts in the affidavit put events
in 'the proper context' (Tr. 293) or
whether he has learned anything in
the seven weeks since he signed the
affidavit which 'would make any of
the statements in your affidavit
untrue?' (Tr. 299)."
Put me in the camp that is reluctant
to ruin someone's life just because
Patrick Fitzgerald says so. I
thought the Scooter Libby
prosecution was wrong. And it seems
clear that Fitzgerald's press
conference against Blagojevich was
an extreme violation of
Illinois Rule of Professional
Conduct 3.8(e). (For
a discussion of the prosecutor's
ethical duty not to make unnecessary
statements against the accused, see
my 2002
NRO article on
Attorney General Ashcroft's remarks
about John Walker Lindh. Compared to
Fitzgerald's remarks, General
Ashcroft's comments were relatively
mild.)
Do I think that Blagojevich could
well be guilty? Yes. Do I think that
Blagojevich has any merits as a
public servant? No. How well do I
know Blagojevich? Only slightly,
having debated him on ABC Nightline
(about gun shows) when he was a U.S.
Representative in 1998.
So if I were in the Illinois Senate,
I might well, with great personal
regret, vote against the conviction
of Governor Blagojevich on the
articles of impeachment.
My media column in today's Rocky Mountain News compared how much coverage the News and the Denver Post provided in the pre-inaugural week for the most recent inauguration, versus Clinton in 1993 and Bush in 2001 (which like 2009, featured a change of party). Since the Obama inauguration was said to be "historic," I also examined coverage of two other inaugurations which had some similarities (in terms of obvious historical character) with 2009: JFK in 1961, and Reagan in 1981. The results don't provide evidence of a pro-Democratic bias, since Bush 2001 and Clinton 1993 were about equal in quantity of coverage, as measured by the number of staff-written stories. Indeed, the 1961, 1981, 1993, and 2001 inaugurals were about equal in terms of coverage. These were dwarfed by the amount of coverage for Obama 2009.
In this week's National
Journal poll
of leading political bloggers,
the Left gives Obama's inaugural
speech an A-, and the right gives it
a B-. I gave it a B, with the
comment, "Excellent use of history,
combined with solid patriotism for
the 21st century. Some of his policy
ideas, including the prominence of
the global warming issue, bode ill
for America's economic future."
Did the speech meet the public's
expectations? From the Left, 86%
said "yes." On the right, 46%
thought so, and another 46% said
"partially." My view: "Yes he did,
yes he did! In delivering a prepared
speech, Obama ranks at the very top,
with Reagan and FDR."
I returned last night from the SHOT
Show (Shooting, Hunting, and Outdoor
Trades), in Orlando. SHOT is the
annual trade show for the firearms
industry, and it also attracts lots
of exhibitors for hunting clothing,
archery, law enforcement gear,
knives, and so on. The mood is not
unlike the mood at the 1993 SHOT
Show, when the Clinton
administration was taking power.
Retailers, wholesalers, and
manufacturers were happy that they
had been making lots of money
(because of concerns about the
administration) but there was also
great trepidation about the future.
One important difference is that the
firearms industry is much
better-organized and
politically-informed than in 1993.
The 1994 ban on so-called "assault
weapons," plus the wave of
anti-manufacturer lawsuits filed by
mayors in 1998-99, has made the
industry much more aware of its need
to defend itself politically. The
National Shooting Sports Foundation
(NSSF) is a much, much more
effective organization than it used
to be.
Because the Show is held in January
or February, and because it has such
enormous needs for space, the Show
tends to be held in one of the
fairly small number of southerly
cities which has a massive
convention center. The people of
Orlando were very, and the
convention center was well-run. But
the conventional wisdom is that the
favorite for most people is Las
Vegas, to which the Show will return
in 2010.
The SHOT Show has a sort of
Brigadoon feel to it. For several
days, you're living in a small city
(population 50,000+) where almost
all your time is spent on a
convention floor, or in receptions
where you're talking with other gun
people. One thing I like about Las
Vegas is that whenever you step
outside the convention, you're on
(or near) the Strip, which is
another zone of non-standard
reality. If the Orlando Convention
Center were next to Magic Kingdom,
there would be a similar effect.
No-one knows for sure in exactly
what way and how quickly the Obama
administration will start its
assault on Second Amendment rights,
although there is little doubt that
the assault is inevitable. (I mean
"Second Amendment rights" in the
normal sense of the word, not in the
Obamaspeak by which banning
handguns, banning lots of other
guns, outlawing self-defense with a
gun, outlawing concealed carry, and
banning all guns stores within five
miles of a school or park is
consistent with the Second
Amendment.)
There are some reports, from
reliable journalists like as Michael
Bane, that the effort to ban
so-called "assault weapons" (that
is, guns which differ cosmetically
from other guns) may come very
soon--partly as a tactic to appease
hard-left activists who have been
disappointed by some of Obama's
appointments or what may be a
relatively moderate approach to
foreign policy. I'm not so sure that
this would make political sense,
since although gun control is
popular with much of the MSM and the
celebrity elite (e.g., Huffington
Post), it doesn't strike me as a
very important issue from the point
of view of Daily Kos readers or
under-35 activists.
Back in 1989-94, when there was the
first federal push for an "assault
weapon" ban, the ban advocates had
to exempt the Ruger Mini-14 rifle,
because it was so widely owned that
a ban which encompassed it was
politically impossible. Making
things worse, from the pro-bna
viewpoint, the AR-15 rifle and its
many variants is probably the most
popular rifle in the country today,
with about five million owned, and
new guns being purchased as fast as
the factories can make them.
Accordingly, my guess is that any
serious campaign for a new ban will
not outlaw guns by name (unlike the
1994 ban), but will give the Bureau
of Alcohol, Tobacco, Firearms and
Explosives (BATFE) administrative
authority to ban guns. This approach
allows the Mini-14 and the AR-15 to
be banned eventually, but saves
Congress from having to take an
explicit vote on outlawing those
particular guns. The "assault
weapon" bans which have been
introduced in the last several
Congresses have taken this approach.
Unless you're in the industry, or in
media that covers the industry, you
can't attend the SHOT Show. But if
you're interested in what's going on
there, outdoor writer Jim Shepherd
has some good
video of
interviews with exhibitors of some
of the interesting new products.
Every year the Denver University Law
Review publishes a Tenth Circuit
Survey. In the forthcoming issue,
the lead article is
my examination of the Tenth
Circuit's record on the Second
Amendment issues. My conclusion:
The Tenth Circuit’s three-decade record of Second Amendment cases was a disgrace to the rule of law.VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here.
It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.
The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit’s jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.
The reason that the Tenth Circuit’s Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.
Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.
Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.
It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.
That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson’s observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
[David Kopel, January 16, 2009 at 3:37pm] Trackbacks
This week's
National Journal
poll of leading political bloggers
finds that 95% of left-leaning bloggers
think that Barack Obama is "somewhat" or
"very" likely to succeed as President.
Forty-one percent of right-leaning
bloggers had that assessment. I rated
him "somewhat unlikely," but I think
it's very hard to predict. We'll have a
much better idea after he's faced the
test that Joe Biden predicted.
I wrote: "Many of his appointments
suggest that he could exceed the
pessimistic view of conservatives who
saw him as a hard leftist. We know he
can run a campaign; we don't yet know
how well he can run the executive
branch. He will be tested early by Iran,
Venezuela and/or Russia; if he lets them
bully him, he will become a one-term
failure like Carter."
The poll also asked for an assessment of
President Bush. The Left was unanimous
in rating him "Terrible." Nobody on the
Right rated him as "Great," and only 29%
gave him "Good." The winning plurality
was "Fair," with 41%.
I voted "Good," since I graded on a
curve, and thought him much better than
Bill Clinton or George H.W. Bush. My
rationale: "No successful terrorist
attacks since 9/11. Overall good
performance on domestic policy, with the
exception of spending out of control.
His worst major idea (semi-amnesty for
illegal aliens) was, fortunately, not
enacted."
Just to be clear, I was referring to
terrorist attacks in the U.S., since
obviously there have been major attacks
in London and Madrid, among other
places. And I realize that one could
classify certain solo crimes (e.g., the
2002 attack on the Los Angeles airport
by an Egyptian) as terrorism. My point
was that al Qaeda and its organized
allies were thwarted from being able to
attack again in the United States.
My
media column for the Saturday Rocky
Mountain News, discussed gross
misstatements of fact which had appeared in
a
November 13 article by ProPublica, an
organization which supplies investigative
articles for free to the mainstream media. A
shorter version of that article had appeared
in the November 17 Denver Post.
Today, ProPublica author Abrahm Lustgarten
has
written a defense of his article. He
claims that my article is "indisputably
misleading." Let's take a look at each of
the three charges which I leveled at the
ProPublica article.
1. I wrote:
The theme of the ProPublica article, headlined "Buried Secrets," is the natural gas industry's refusal to disclose a list of all chemicals which are injected into the ground in hydraulic fracturing. The article accurately characterizes the Colorado Oil and Gas Conservation Commission as the "most stringent" regulatory agency regarding hydraulic fracturing.In the spring, the Colorado Oil and Gas Conservation Commission had proposed draft regulations which would have required natural gas drillers to disclose the exact recipes for the fluids which are injected into the ground in hydraulic fracturing. During summer hearings, the industry vehemently objected, and said that they would pull out of Colorado, rather than disclose their trade secrets. Lustgarten's article accurately describes this part of the story.
The COGCC promulgated its final draft rules on Nov. 7, before the Nov. 13 ProPublica article, and before its Nov. 17 appearance in the Post. The article misdescribes the new regulations, and, significantly, omits the fact that the commission's new disclosure rule is nearly identical to what the drilling company Halliburton proposed in its June testimony to the commission. Section 205 of the new regulations protects drillers' trade secrets about the precise chemical recipes, while mandating full disclosure when specifically needed by the state for health or environmental protection.
Then, according to Lustgarten:
In August, the industry struck a compromise by agreeing to reveal the chemicals in fracturing fluids to health officials and regulators — but the agreement applies only to chemicals stored in 50 gallon drums or larger. As a practical matter, drilling workers in Colorado and Wyoming said in interviews that the fluids are often kept in smaller quantities. That means at least some of the ingredients won't be disclosed.This is entirely wrong. Under section 205 of the the final draft rules, which were published on November, the reporting trigger is not 50 gallon drums, but whether an individual well site uses 500 more more pounds of a chemical product in a quarter. Significantly, fracking companies must disclose to the public the trade names of the fracking ingredients; moreover, whenever an environmental or health official needs information for a specific investigation, the companies must disclose the exact chemicals in their recipes, with the chemical list being treated a Confidential Business Information by the officials who receive the list. As a described in my article, the final rule is similar to what Halliburton proposed in its June 6, 2008 testimony.
"They’ll never get it," says Bruce Baizel, a Colorado attorney with the Oil and Gas Accountability Project, about the states’ quest for information. "Not unless they are willing to go through a lawsuit. When push comes to shove, Halliburton is there with its attorneys."
Lustgarten's January 12 self-exculpation does not even mention his misdescription of the regulations, and does not attempt any rebuttal of my evidence that he falsely accused the natural gas industry of hiding "buried secrets" even though the industry had proposed a disclosure rule and the "most stringent" (Lustgarten's words) agency had adopted something very close to that rule.
2. A second issue is Lustgarten's bait and switch about data. The article includes an extensive discussion of a case in Sublette County, Wyoming, in which groundwater was alleged to have been contaminated by hydraulic fracturing, and in which the federal Bureau of Land Management determined that fracturing might be the cause. Lustgarten wrote:
The contamination in Sublette County is significant because it is the first to be documented by a federal agency, the U.S. Bureau of Land Management. But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania. In one case, a house exploded after hydraulic fracturing created underground passageways and methane seeped into the residential water supply. In other cases, the contamination occurred not from actual drilling below ground, but on the surface, where accidental spills and leaky tanks, trucks and waste pits allowed benzene and other chemicals to leach into streams, springs and water wells.In an e-mail to Lustgarten, I specifically asked him what he now calls "a precisely tailored question." I asked him for the documentation of his claim that there were over a thousand "documented" state and local cases of groundwater contamination from "hydraulic fracturing." ("where can the data be found which substantiate the fact about over a thousand documented cases of contamination from fracking in five states?") He responded by pointing to the Colorado and New Mexico agencies. ("The New Mexico Energy, Minerals and Natural Resources Department and the Colorado Oil and Gas Conservation Commission have together documented more than 1000 cases where water was contaminated by drilling activities.") I asked the Colorado and New Mexico agencies the same question I had asked Lustgarten, and the response was "zero" for Colorado; and that New Mexico has no such data.
It is difficult to pinpoint the exact cause of each contamination, or measure its spread across the environment accurately, because the precise nature and concentrations of the chemicals used by industry are considered trade secrets.
Now, Lustgarten says that all along he was talking about any water contamination that resulted in any way from oil or gas drilling--such as leakage of chemicals from a waste pit on an oil-drilling site.
But that's not the question that I asked Lustgarten, and it's not what he wrote in his article. His article contrasts "the first to be documented by a federal agency" with "But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania." How many times do you think that any "federal agency" has "documented" groundwater contamination that resulted in any way from oil or natural gas drilling. If and only if the 2008 BLM case in Wyoming is the first and only case of such federal documentation can Lustgarten's defense of his article be true.
3. I also wrote that Lustgarten had falsely described a study by the Interstate Oil and Gas Compact Commission:
The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.There are three comprehensive studies about hydraulic fracturing: a 2004 study by the EPA; a second, earlier, study about the same subject as the EPA study (groundwater safety as it relates to about hydraulic fracturing in coal methane beds); and the third study, mentioned above, by the Interstate Commission. My article mentioned and discussed only the third study.
The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."
Lustgarten writes:
The drilling industry, echoed by Kopel, cites three documents when asserting the environmental safety of hydraulic fracturing. They are a 2004 EPA study (PDF), a 2002 survey of state agencies (PDF) by the Interstate Oil and Gas Compact Commission and a similar survey in 1998 by the Ground Water Protection Council (PDF).To say the least, that's an extremely idiosyncratic meaning of "anecdotal." The dictionary defines "anecdotal" as "based on personal observation, case study reports, or random investigations rather than systematic scientific evaluation."
In its Nov. 13 article, ProPublica detailed flaws in the EPA study and reported that the two surveys were "anecdotal," meaning that they included none of the basic data required to qualify as a scientific study.
"Anecdotal" is an accurate description of Lustgarten's article, which examines a few cases of alleged contamination. There's nothing wrong with anecdotal news stories. "Anecdotal" is not an accurate description of the Interstate Commission study, which has no anecdotes, and which collected decades of data from 28 state regulatory agencies.
Now, we find that Lustgarten apparently has his own definition of "anecdotal"--that is, something is "anecdotal" if does not include "the basic data required to qualify as a scientific study." Perhaps at some time Lustgarten will explain what basic data he thinks were lacking from the two studies. As a media critic, I would not have criticized him for offering plausible critiques of the studies. His article, however, did not contain any argument about what data he thought were missing, and his characterization of the studies as "anecdotal" was false and misleading--at least for readers who understand the word to mean what the dictionary says it means.
Today I received this e-mail from Mark Thiesse, a Wyoming groundwater regulator who is quoted in Lustgarten's original article:
I’d like to thank you for your recent editorial on the ProPublica article. I was one of the folks (I’m with the WY Dept of Env Quality) interviewed for this article by Mr. Lustgarten. I spent several hours on the phone and around a dozen follow up emails to try and help him write a factual article. Unfortunately he seemed to have his own agenda. The one error that was most blatant from my perspective was the "20 mile long plume" that he mentions. I must have told him 5 times that it was individual impacts to separate water wells due to water well drilling practices – not related to oil and gas drilling at all – but that did not make it into his article that way.If you had to make an important decision, would you rely on the factual information in a ProPublica article? I have only studied one article from ProPublica in detail, but the organization's implausible efforts to defend the validity of a wildly inaccurate article would make me hestitate to rely on anything from ProPublica.
My media column for today's Rocky Mountain News continues an investigation of ProPublica, a non-profit which supplies articles for free to mainstream media. The particular story I write about involves natural gas drilling in Colorado and Wyoming, and a technique known as hydraulic fracturing. My column finds very serious factual errors in the ProPublica article. For example, I write:
The Colorado experience of zero cases of water contamination from hydraulic fracturing is consistent with the 2002 study from the Interstate Oil and Gas Compact Commission (a consortium of state regulatory agencies). The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.The one article which I examined in depth is not necessarily representative of the overall quality of ProPublica's work. Nevertheless, the quality control failure on that article would make me very cautious about using ProPublica's work, if I were a MSM editor. Before using the article, I would probably assign one of my own staffers to fact-check the ProPublica article.
The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."
This week's
National
Journal
poll of
leading
political
bloggers
asked about
economic
stimulation
and Israel.
The results
showed
perhaps the
widest
divergence
of opinion
between Left
and Right
since the
poll began
last fall.
On economic
stimulus,
voters rated
different
means, on a
scale of
1-5, with 5
being best.
Aid to the
States was
highly rated
(54% giving
it a 4 or 5)
by the Left,
but not by
the Right.
Infrastructure
spending
garnered 67%
from the
Left, and
far less
from the
Right.
Conversely,
the Right
gave 86%
support to
tax cuts for
businesses
and tax cuts
for
individuals,
both of
which
garnered
little
support from
the Left.
The one
issue of
some
agreement
was on
safety net
spending,
where 62% of
the Left and
93% of the
Right did
not give
safety net
spending a
high rating
as a form of
economic
stimulus.
I gave
Infrastructure
a 3, which
was higher
than most of
the Right
voters, and
would have
rated it
higher if I
were
confident
that the
money would
be well
spent. My
comment:
"Spending on
useful
infrastructure
could help
the economy
in the long
run, but it
will be
difficult to
keep the
stimulus
money from
being used
for
inefficient
pork
projects,
which state
and local
taxpayers
have rightly
refused to
fund."
Regarding
Israel's use
of force in
Gaza, the
Left/Right
split was
enormous.
The Left was
unanimous
that Israel
was using
too much
force. The
Right
divided
between
those who
thought the
amount of
force was
"about
right" (58%)
versus "not
enough"
(33%).
I was in the
latter
category,
and wrote
"No nation
should have
to endure
years of
terrorist
rocket
attacks
aimed at
civilians.
Israel has
every right
to destroy
Hamas. The
civilians
who elected
Hamas are
the ones who
are to blame
for the
suffering of
the people
in Gaza,
just as the
voters who
elected the
Nazis bore
the
responsibility
for the
necessary
Allied
military
invasion of
Germany."
As has been
previously
noted in the
VC, the
Nazi/Hamas
comparison
is a little
unfair to
the Nazis
(and, by
extension,
to the
Germans who
voted for
them), since
the Nazis
didn't put
genocide of
all the Jews
in their
official
platform,
whereas
Hamas does.
Douglas
Kmiec has
sharply
criticized
the majority
opinion in
District of
Columbia v.
Heller.
E.g.,
Slate,
July 8, 2008
(majority
opinion
amounts to
unjust rule
by judicial
fiat);
Tidings,
July 11,
2008 (Heller
majority
misconstrued
the Second
Amendment,
had no basis
in
"Constitutional
text,
history, and
precedent",
and also
violated the
"long-standing
teaching of
the American
Catholic
bishops".)
See also
Slate,
March 17,
2008 (Second
Amendment's
anti-tyranny
purpose is
obsolete,
and the
Court should
not create a
new purpose
for the
Amendment).
Contrast the
viewpoint in
these
articles
with that of
an
amicus brief
filed in
support of
Heller, and
in
opposition
to the
District of
Columbia:
Amici believe that the Amendment secures to individuals a personal right to keep and bear arms and that the decision below correctly interpreted and applied the Amendment in this case....If the Second Amendment does secure an individual right, then this case lies within its very core. For if that right means anything, it surely protects the right of a law-abiding citizen to keep an ordinary handgun in his own home for self defense. The District of Columbia's laws prohibit this, and so are to that extent unconstitutional.That amicus brief was the filed by "Former Senior Officials of the Department of Justice in Support of Respondent." The Appendix provides a list of "Amici Curiae in Support of Respondent." The amici list states: "Douglas W. Kmiec served as Assistant Attorney General for the Office of Legal Counsel from 1988 to 1989."
It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time, especially without an explanation of how he came to the conclusion that his former view was so utterly mistaken--or without even an acknowledgement that he recently held his former view so firmly that he urged the Supreme Court to adopt it.
UPDATE: Professor Kmiec's response (via a cordial e-mail to Eugene Volokh):
I joined the brief of former DOJ officers because at the time I thought the Court would benefit from a more complete statement of how the Department of Justice had construed the Second Amendment in past litigation and testimony; the former officer DOJ brief was primarily intended to supplement an incomplete presentation filed on behalf of former Attorney General Reno and others. My former OLC colleague, Charles Cooper, was the brief’s primary drafter, and while I supported his able presentation of the prior DOJ history, again clearly identified as the reason for the brief, I ultimately did not share – after the additional study I am certain many of us did of all the materials filed in the case — the bit of advocacy quoted by Professor Kopel. That ultimate difference of view I do not think disserved the core purpose for assisting the Court for the limited purpose described.My response: As Professor Kmiec points out, the bulk of the brief is devoted to correcting the Janet Reno/Eric Holder/et al. amicus brief's mischaracterization of the historical position of the United States Department of Justice. However, the Conclusion of the brief is "For the foregoing reasons, the decision of the Court of Appeals should be affirmed." The first sentence which I quoted above was from the "Interest of Amici Curiae" and the latter two sentences were from the "Summary of Argument." So these sentences were not ornamental advocacy, but the very heart of the brief. I still do not understand why the Court's adoption in June of exactly what Professor Kmiec urged in February is not only incorrect, but utterly indefensible and lawless, as he claimed in July.
In the National Journal's latest blogger poll, 56% of left-wing bloggers and 78% of right-wing bloggers believe the U.S. Senate should seat Roland Burris. I voted in the majority on this one. Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator, but I think that the Senate is constitutionally required to seat him. The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt. Of course it would be better in this case, and in the case of other Senate vacancies, to have a prompt special election to fill the seat. An Illinois Senate delegation consisting of Dick Durbin and Roland Burris is a pathetic contrast with the kind of Senators that Illinois used to send the nation, such as the distinguished duo of Everett McKinley Dirksen (Rep.) and Paul Douglas (Dem.) in the early 1960s.
- Left/Right Consensus: Seat Burris:
- Argument for Why the Senate May Decline To Seat Roland Burris: