Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.

Categories: Congress, Constitutional History, Economic Liberties, Federalism, Health Care, Supreme Court

April 27 was the tenth annual “Richard J. Daley Global Cities Forum,” held in Chicago. Over a hundred mayors and other local government leaders assembled to discuss global issues. As reported in the Chicago Sun-Times, “Daley convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.”

At a news conference, Daley explained, “This is coming from international mayors. They’re saying, ‘We’re tired of your guns, America. ... We don’t want those anymore because guns kill and injure people.’”

Among the supporters of the Daley resolution was Mexico City Mayor Marcelo Ebrard Casauban, who said that “85 percent” of Mexican drug cartel guns come from the United States. Philadelphia Mayor Michael Nutter also endorsed a World Court case, because “I love the 2nd Amendment,” but “I have a 1st Amendment right not to be shot.”

In 1998, Chicago Mayor Daley and New Orleans Mayor Marc Morial filed the vanguard of what would become three dozen municipal lawsuits against the firearms industry. The lawsuits were not successful in court, but they did come very close to convincing firearms manufacturers to capitulate. The suits were finally ended by the Protection of Lawful Commerce in Arms Act, signed into law in 2005.

So what are the rules in the International Court of Justice (which is informally called “the World Court”)? Chapters 36 and 37 of the ICJ statute define the Court’s jurisdiction.

The classic World Court case is a nation vs. nation dispute in which both parties have submitted to the Court’s jurisdiction. For example, Jamaica and the Bahamas ask the World Court to settle their disagreement about who owns some tiny islands in the Caribbean. A World Court ruling in such a case is binding.

In these state v. state cases, no other party participates, but the World Court can receive information from NGOs, government agencies, and so on.

Thus, the plaintiff in a ICJ might be the state of Mexico itself. In a state v. state case, a state can assert the interests of its nationals. For example, Mexico might assert the interest of Mexicans who are allegedly harmed by firearms manufacturers which are permitted to operate in the United States or in other nations.

There are four modes of state consent to ICJ jurisdiction:

First, the parties themselves can ask the ICJ to hear the case.

Second, the Court has jurisdiction over “matters specifically provided for ... in treaties and conventions in force.” That is, a treaty may declare that it gives the ICJ the authority to resolve disputes arising under the treaty.

Third, a state may make a general declaration that it will accept ICJ jurisdiction.  When the case of Nicaragua v. United States was brought during the Reagan administration, the United States withdrew from ICJ jurisdiction. The decision was made by Executive authority, and could be changed by Executive authority.

Finally, jurisdiction can be based on tacit consent (forum prorogatum).

Besides issuing legally binding opinions in state v. state cases, the ICJ can also issue advisory opinions. Certain United Nations agencies and bodies have the authority to ask the ICJ for an advisory opinion. For example, the United Nations General Assembly asked the ICJ for an advisory opinion about Israel’s defensive wall. The ICJ condemned Israel’s anti-terrorist barrier as a violation of international law.

An ICJ advisory opinion is not, in itself, legally binding. However, other courts may accept the ICJ opinion as a definitive statement of international law. So the courts which do have power to compel the state (e.g., a nation’s own Supreme Court; or the European Court of Justice) could take the ICJ opinion, and then issue their own order requiring the national government to comply with international law as persuasively declared by the ICJ.

The ICJ has already shown itself to be willing to get involved in weapons control. In the 1996 case Legality of the Threat or Use of Nuclear Weapons, the ICJ was asked by the UN General Assembly for an advisory opinion on the legality of the use of nuclear weapons. The Court ruled 11–3 that nuclear weapons per se are not prohibited by any international law, but held  that most uses of nuclear weapons would be prohibited by general laws of warfare (e.g., the prohibition on targeting civilians).  Further the Court held that there was a legal obligation for complete nuclear disarmament: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

A court which feels competent to mandate complete nuclear disarmament may not feel reluctant about granting the relief sought by Mayor Daley’s international allies.

Of course whether Mexico (or some other nation, such as Brazil, whose President Lula is an ardent advocate of gun prohibition) would bring an ICJ case is at present unknown. Likewise unknown is whether the US would consent to suit, or whether the ICJ would infer some kind of tacit consent. It is also unknown whether Mayor Daley and his allies could accomplish some of their objectives by suing other nations (perhaps with the consent of the nominal “defendants”) which have domestic firearms industries which export to the United States civilian market, and which have explicitly consented to ICJ jurisdiction.

A 2003 article by Joseph Bruce Alonso in the Journal on Firearms & Public Policy explores the legal interplay between international and domestic law in legal cases involving gun control. The short answer is that the Second Amendment might provide some protection in US courts, but would offer little protection from international court actions taken against US nationals–such as the seizure of foreign assets owned by US corporations.

This Wednesday, April 28, at the University of Colorado Law School, Wolf Law Building, 7–9. Sponsored by the American Civil Liberties Union of Colorado, Boulder Chapter (of which I am a card-carrying member). Arguing for the Obama bill (and against Colorado Attorney General Suthers’ participation in the suit against the bill) will be former Colorado Supreme Court Justice Jean Dubofsky. Arguing against the bill will be me. The event will be live-cast on the ACLU of Colorado’s website.

Categories: Health Care 7 Comments

Does much more than just impose background checks small-scale vendors at gun shows. Details here, in this article I wrote for the Saturday Denver Post.

“How closely should the Republican Party align itself with the Tea Party movement?” In this week’s National Journal poll of political bloggers, 65% of the Left and 78% of the Right says “somewhat” or “very” closely. However, the Left was mostly “very” while the Right favored “somewhat.” My answer had less to do with the movement per se than with its ideas: “If the Republican Party for the last 10 years had paid more attention to the Tea Party’s core concerns (spending restraint, and Congress only passing laws that are within the enumerated powers which the Constitution grants to Congress), Republicans might not have lost their congressional majorities.”

The other question was “Would Florida GOP Gov. Charlie Crist benefit by running for the Senate as an independent?” Eighty percent of the Left said “yes,” but only 33% of the Right thought so. I thought “yes,” as long as the only question is the Senate in 2010: “It certainly seems that his chances of being elected to the Senate as a Republican are dim, so his chances as an independent might be greater. However, if he foresees a possible future in the Republican Party (e.g., as an appointee of a Republican president who might be elected in 2012), running as an independent would be very harmful for his long-term career.”

With President Clinton wagging his finger at the Tea Party movement and claiming that the movement is inciting violence, it is worthwhile to remember the role the Clinton administration in perpetrating and covering up numerous violent and other crimes at Waco. The subject is treated at length in my book, co-authored with Paul Blackman, No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It. This page provides a summary of the book, a free copy of the first chapter, two law review articles (on the warrant, and on police militarization), several shorter articles, and videos of speeches regarding Waco.

Just to be clear to the trolls who comment without reading: The book describes the Branch Davidian false prophet Vernon Wayne Howell (a/k/a David Koresh) as a predatory sociopath and a criminal. And of course nothing in the book attempts to justify that other sociopath Timothy McVeigh. Nor does the book claim that federal agents deliberately started the fatal fire, although it does point out that before the fire began, at least some of the victims had already been killed by the CS chemical warfare bombardment and tank attack.

Categories: Uncategorized 220 Comments

Much more extensive and complex than you might think, even if you recognize “acquit” as derived from the Normans. Great podcast on the subject from Lingua Franca, a weekly Australian radio program on linguistics.

Categories: History 22 Comments

Former President Bill Clinton is back to practicing one of his core competencies: exploiting the 1995 mass murders in Oklahoma City for political advantage in order to suppress criticism of himself and his political allies. Accordingly, some persons might be interested in reviewing the multiple severe injuries that President Clinton inflicted on the Constitution in his “anti-terrorism” bill and his public relations campaign for the bill, a topic which I explored in a 101 page article in a 1996 special memorial issue of the Oklahoma City Law Review.

Categories: Terrorism 174 Comments

“Senate Majority Leader Harry Reid says ‘we’re going to have comprehensive immigration reform now.’ Top political bloggers don’t see it.” So begins the National Journal’s write-up of this week’s blogger poll. Seventy percent of the Left and 78% of the Right called enactment of a comprehensive bill either “very” or “somewhat” unlikely. I was in the “very” group: “As the passage of ObamaCare showed, the Reid-Pelosi team has extraordinary talent at pushing unpopular legislation through Congress. But it seems unlikely that there will be enough swing-seat Democrats, who are already in enough trouble, willing to change their own chances of re-election from ‘difficult’ to ‘nearly impossible.’”

The second question asked the bloggers if they were open to supporting some form of a VAT. Only 1/3 of the Left and 1/6 of the Right expressed openness. I was part of that small minority: “If and only if accompanied by substantial, immediate fiscal reform, such as a balanced budget amendment, major entitlement reform, a large reduction in the percentage of the population who are consumers rather than payers of income tax revenues, and an iron-clad program to pay down the federal debt.”

Categories: Congress, Taxes 38 Comments

Students for Concealed Carry on Campus v. Regents of the University of Colorado. Decided this morning by the Colorado Court of Appeals (a three-judge panel of Colorado’s intermediate appellate court).  In brief: Colorado’s licensing statute for carrying a concealed handgun for lawful protection is explicitly preemptive. The University of Colorado bans concealed carry anyway, arguing that there is an implicit exception applicable to CU. The Mountain States Legal Foundation brings a suit on behalf of SCCC. The trial court dismisses for failure to state a claim. The Court of Appeals unanimously reverses the dismissal, and remands the case for further proceedings. The Court of Appeals holds that: 1. The statutory claim under the Concealed Carry Act should not have been dismissed, because there is no exemption for the University of Colorado. 2. The constitutional claim under the Colorado Constitution’s right to arms provision should not have been dismissed; the proper standard of review, under Colorado case law, is “reasonableness”, which is a higher standard than rational basis. The Court of Appeals expresses no opinion on the merits of the constitutional claim.

Congratulations to MSLF attorney Jim Manley!

UPDATE: Since the comments thread is mostly a discussion of empirical/policy issues, it is perhaps worth mentioning that the Court of Appeals opinion cites the two major relevant works on either side of the issue: the Brady Center’s monograph, and my article in Connecticut Law Review. The court adds that such questions are irrelevant to its decision-making, which seems to be the proper approach for a case that (for purposes of the Court of Appeals decision) involves statutory interpretation, plus articulation of the standard of review for the Colorado Constitution right to arms. Since the statutory interpretation issue basically resolves the case conclusively in favor of Students for Concealed Carry, the trial court on remand probably will not even need to reach the constitutional question. If for some reason the trial court does need to make a constitutional decision, then the court would need to consider empirical evidence and policy issues, as does any court applying any heightened form of review.

Categories: Academia, Guns

That’s the title of a draft article that I have recently submitted to law reviews. Most of the article is a translation into English of the Mexican federal gun control statute. The article also translates current and past versions of the Mexican Constitution’s right to arms clause, and provides some basic information about the operation of Mexican firearms laws, some brief history about gun culture in Mexico, and analysis of claims about the percentage of Mexican crime guns which come from the U.S. civilian market. Thanks to Denver University law student Angelica Tovar-Hastings for helping with the translation.

Categories: Guns 9 Comments

Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate,  include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbart’s website. 

The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.

18. Plaintiffs do not desire and have no intention to obey what they consider to be an unconstitutional individual mandate . . .

Para. 35: The Constitution gives Congress the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. The tripartite enumeratation shows that the “substantially affects” test for regulation of interstate commerce does not imply an infinite power. Since everything affects everything else, at least in some degree, a regulation of Indian or foreign commerce might be justified on the ground that it “affects” interstate commerce. However, the text separates interstate, foreign, and Indian commerce. “Had the Founders intended the commerce power to be unlimited, enumerating three categories of commerce for Congress to regulate would have been wholly unnecessary.” (And as Justice Thomas pointed out  in Lopez, the theory of an unbounded interstate commerce power is also contradicted by Article I’s enumeration of a separate bankruptcy power.)

70. . . .the compelled purchase of health insurance also constitutes the ”taking” of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious “taking” of property.

74. For the purposes of a substantive due process analysis there is no meaningful distinction between a person who asserts the right to contract or associate with another private entity and a person who asserts the right not to enter a contract or to associate with another private entity. Refusal to enter into a contract in the face of an illegitimate demand for a contract is subject to protection under the Fifth and Fourteenth Amendments to the United States Constitution. Just as a person has a First Amendment Constitutional right, in certain circumstances, to be free from exercising freedom of speech, Plaintiffs in this matter have the Constitutional right to be free from entering a private contract or an involuntary association.

In my view, the most interesting paragraph is this one:

75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.

Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure  of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about one’s life–and making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.

In your comments, please focus the discussion on the Mississippi class action case.

Categories: Health Care 154 Comments

The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted by “the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right.” The report provides three examples. First:

Since the 1990’s, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a “Christian Nation” in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month’s decision by the Texas School Board to remove Thomas Jefferson—the symbol of America’s tradition of religious freedom and tolerance—from the states’ history curriculum.

The report is accurate in that some (although hardly all, or necessarily most) supporters of the “Christian Right” believe that the government should favor Christianity over other religions. Most of the Christian Right does believe, as did Chief Justice Rehnquist, that in some circumstances the government may favor religion over irreligion. See Wallace v. Jaffrey (1985) (Rehnquist, J., dissenting from decision to declare moment of silence in schools unconstitutional).

The report’s description of the Texas State Board of Education (not the “Texas School Board”) is inaccurate. Under the new proposed standards, Jefferson is part of the required curriculum for 5th grade American History, 8th grade American History, and the high school class in U.S. Government. He was removed from the standards for World History class, because the Texas State Board thought that he should not be included among “European Enlightenment philosophers.” In the 8th grade American History class, not only is Jefferson required, so is his good friend, the famous enemy of organized religion, Thomas Paine. Only George Washington appears in the Texas curriculum standards more often than does Jefferson.

Item 2 in The Democratic Strategists’ parade of horribles is the lawsuits against Obamacare:

The basis for such suits—typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution—is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

The word “basis” has a footnote cite to an article by Matthew Yglesias. The Yglesias article criticizes the notion that  Commerce “among the several States”  should be “understood as basically about transporting goods across state lines.” Yglesias points out: “the Louisiana Purchase, the Bank of the United States, Henry Clay’s ‘American System,’ a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.” True enough in a broad sense (although most of Yglesias’s 19th century examples do not involve the interstate commerce power). So if the lawsuits were premised on the idea that the federal power over interstate commerce extends only to the sale of goods across state lines, The Democratic Strategist’s warning would be apt.

However, if you read the complaints filed by Virginia and by the 18-state coalition led by Florida, there is no argument against the interstate commerce power as it existed on March 1, 2010. Rather, the complaints argue against an unprecedented expansion of the interstate commerce power: namely the purported power to force an individual to purchase a product he does not want to purchase, and an unprecedented use the tax code to punish someone for choosing not to purchase a product.

While the cases do complain about changes in the state funding formula for Medicaid, they never question the constitutionality of Medicaid itself. Thus, an attack on Obamacare is not “automatically and unavoidably a collateral attack” on even an iota of the New Deal and the Great Society. As I have previously detailed, finding the Obamacare mandate and its associated tax to be unconstitutional does not require overturning, or even questioning, a single precedent in existing Supreme Court law.

The third and final item in the parade of horribles:

The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950’s and 1960’s era segregationist strategies to thwart desegregation and civil rights for African-Americans. [And, later in the document:] Let them bring it on with all the segregation-era legal strategies of succession and nullification.

Well, not exactly accurate. First, the doctrine of “succession” describes how Barack Obama became President after George W. Bush. One of the first uses of the constitutional doctrine of succession was when John Adams became President after George Washington.

The doctrine of “secession” long predated the Confederacy. It was advanced by, among others, some New Englanders who wanted to leave the Union during the War of 1812, by Southerners who advocated the right when objecting to the 1828 Tariff of Abominations, and by some persons at the very end of 18th century who feared that President Adams was moving the country towards dictatorship. Thomas Jefferson, in his 1798 letter “Patience and the Reign of Witches,” counseled against secession as response to “a temporary superiority of the one party,” notwithstanding the “oppressions of enormous public debt. . . . Better keep together as we are. . . If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost . . . .”

The Democratic Strategist rightly reveres the great Thomas Jefferson, so it is surprising that TDS does not know (or, at least, does not acknowledge) that the constitutional doctrine of nullification was first articulated by Jefferson himself, in the Kentucky Resolution of 1798. As Jefferson put it, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” James Madison, the Father of the Constitution, articulated the milder doctrine of Interposition, in the Virginia Resolution, declaring that the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

The Democratic Strategist affirms “that the Democratic Party proudly upholds the traditional American view of the constitution—the view of the founding fathers of this country—George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”  The Democratic Strategist then accuses its imagined enemies of being anti-american for allegedly trying “To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights”  and the right of individuals “to ignore any laws they choose.”  This is straw man. As far as I know, no employee of The Federalist Society ever said that any individual could ignore any law he chose. All of the Founders, including Washington, Jefferson, Franklin, Hamilton, and Adams, did believe that in cases of great urgency and necessity, disobedience was a moral duty–which is why they helped to remove one government and replace it with another in 1776. Even under that new government, Jefferson and Madison thought that states had a duty to protect their citizens from federal laws which violated both natural rights and the Constitution–as did the Sedition Act, in the view of Jefferson and Madison. And of course many great Americans in the Civil Rights Movement in the 1960s refused to obey racially discriminatory laws which they believed to be contrary to natural rights and the Constitution.

Americans in the 21st century are free to disagree with Jefferson and Madison, just as did many Americans of 1798, since other some other state legislatures voted to reject the call to support the Kentucky and Virginia resolutions.

Near the end, the TDS memo announces: “Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history.” May people of every political persuasion resist every attempt to write Thomas Jefferson out of our history. May everyone extol, as does TDS, “the traditional American view of the constitution—the view of the founding fathers of this country.” And so in our modern debates on the Supreme Court and judicial policy, may everyone be free to disagree with Thomas Jefferson and James Madison, but let no-one who espouses the constitutional doctrines of these great Americans be maligned as unamerican.