Very nice New York Times obituary of Robert Hicks, one of the leaders of the Deacons for Defense and Justice in Louisiana in the 1960s. A good example of how Second Amendment rights were used to protect Fourteenth Amendment rights.

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.

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.

According to the Daily News, New York City’s multi-millionaire mayor Michael Bloomberg’s gun-grabbing mayors group is dropping a cool quarter-million dollars for an ad campaign, including one in Colorado, to pimp Bloomberg-supported federal legislation to close the alleged “gun show loophole.”  But it is not all smooth sailing

Last Tuesday (April 20)  Denver defense attorney Jeralyn Merrit wrote that, “for the first time since 2002″ she had rejected putting an ad on her excellent criminal justice and political blog, TalkLeft.com.  So what made her reject the ad?  According to Jeralyn:

It was an ad for gun control, that began in big letters, “Keep Guns Out of the Hands of Criminals” and urged people to support new laws on sales at gun shows. Given the focus of this blog, to protect the rights of those accused of crime and particularly, constitutional rights, I would have recoiled every time I logged on to my own blog.  So, even though it would have paid for TalkLeft’s hosting service for a full month (no small amount since we’re on our own server), I rejected it.

Way to stick to your guns, Jeralyn.

The Denver Post, on the other hand, had no problem taking an ad for Bloomberg’s bad gun bill.

Check out Independence Institute Research Director and Second Amendment scholar Dave Kopel in Saturday’s Denver Post in response to a full-page ad the Post ran urging Senator Mark Udall to get on-board the Bloomberg bandwagon.  Writes Kopel:

According to the ad, the Bloomberg bill would nationalize Colorado’s rule about background checks at gun shows. But in fact, only a small fraction of the Bloomberg bill addresses the issue of background checks. The rest of the bill has a much more aggressive agenda.

Check out the whole thing here.

Being the accomplished legal scholar that I am, I peruse the Volokh Conspiracy website daily, eagerly gobbling up the finer points of law, litigation, and recent court rulings. Okay, not exactly. But it truly is a wealth of information for all you law geeks out there. Research Director Dave Kopel blogs regularly on Volokh in addition to the volumes he publishes elsewhere.

A post by Georgetown law professor Randy Barnett caught my eye yesterday morning. Randy was recently interviewed by the Health Care Channel to discuss his thoughts on the recently passed health care “reform.”

In the first video, Randy discusses the unconstitutionality of the health care mandate. His reasoning is similar to what Dave Kopel wrote in this previous Volokh post, where Dave asked, “Is the power to tax infinite?”  Randy and Dave both discuss the ridiculous idea that people be punished for NOT engaging in commerce.

In the second video Randy address the tenth amendment concerns many are having about Obama Care, most notably a dozen or so state Attorneys General. Randy of course sides with the AGs on this one.

Research Director Dave Kopel also sides with our AG John Suthers on this one, and fully supports the constitutional challenge against Obama Care. Former Colorado Supreme Court Justice Jean Dubofsky does not. Which makes me wish that if somehow, someway we could get these two in a room to debate…. Dreams do come true! In less than a week, CU-Boulder and the Boulder County ACLU are co-hosting a debate between these two great legal minds in Boulder at the CU campus. I’ll see you there!

“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.”

When the Colorado legislature passed the infamous “Amazon tax,” we got angry. When that caused Amazon to drop its Colorado affiliates, that made us even more mad. Imagine just how furious we’ll be if and when this happens:

Prior to Colorado, the New York and North Carolina state legislatures passed an “Amazon tax”, ostensibly as an attempt to close budget holes. North Carolina then went on a fishing expedition looking for lost tax revenues from the past seven years. After receiving “voluminous information about nearly 50 million items sold to North Carolina customers, including order numbers; the city, county, and zip codes to which items were shipped; transaction dates and prices; and Amazon’s standard product code for the items,” now the Tar Heel state is asking Amazon for more personal information on all its customers.

More personal information… like what exactly?

The Internet retailer says the state’s Department of Revenue is demanding the name and address “of virtually every North Carolina resident who has purchased anything from Amazon since 2003, along with records of what each customer purchased and how much they paid.

Luckily for North Carolinians, Amazon is fighting that request in the courts.

Uh oh. Is this what we have to look forward to here in Colorado? After getting ratted out for all of our online purchases, our personal information is next on the list?

And can I just add that this year has been a stinker in terms of Colorado citizens’ privacy. First the all-payer health care database and now this? Makes me wonder along with our transparency czarina Amy Oliver, where have all the civil libertarians gone?

Is it too easy to amend Colorado’s constitution? Tune in to Independent Thinking and find out as Alicia Caldwell from the Denver Post and Elena Nunez from Colorado Common Cause join me to discuss draft legislation that would significantly impact the ability of citizens to put initiatives on the ballot in Colorado. That’s this Friday, April 23 at 8:30 PM on KBDI channel 12. Re-broadcast the following Monday at 1:00 PM.

On April 15, the Colorado House of Representatives overwhelmingly passed House Bill 1352, which nibbles at the edges of some of the more egregious aspects of the disastrous war on drugs by reforming some of Colorado’s controlled substance statutes.

This is a hugely important step for Colorado lawmakers in taking back their rightful prerogative to both write, and when necessary, re-write the state’s criminal code from the irrational drug law regime foisted on Coloradans by the federal government

In 1992, Colorado lawmakers enacted the Uniform Controlled Substances Act (USCA, Article 18 of Colorado’s criminal code).  The act was written to “complement” the federal Controlled Substances Act, and designed to bring state drug laws in to conformity with federal drug laws. The act, among many other things, created numerous new drug offenses in Colorado, and sentencing enhancements for those offenses.

In our Constitutional Republic, the authority and responsibility to write the state’s criminal law lies with the legislature.  In other words, the 1992 General Assembly willingly subjugated its prerogative to write Colorado’s criminal law to the dictates of federal drug war bureaucrats. What was the result?

Over the last several decades, the percentage of inmates whose most serious sentencing offense is a drug offense has quadrupled to around 20 percent of Colorado’s prison population. Drug offenders are by far the single largest category of new admissions to Colorado prisons at around 23 percent of annual admissions.

There are more drug offenders in Colorado prisons today than the entire prison population 25 years ago when the state’s inmate population was around 3,500.

In a January 1992 issue paper, published before the UCSA was enacted, Independence Institute Research Director Dave Kopel laid out the dangers in allowing unelected and unaccountable federal employees to decide Colorado law, asking:

Is an increment of presumed advantage in the drug war worth the price of warrantless searches, extreme and irrational punishments, pointless additional prison crowding, expansion of prosecutors’ power to take property from people never found guilty of a crime, and further abdication of state powers to federal bureaucrats?

The drug policy reform recommendations incorporated into House Bill 1352 are actually quite modest, having been exhaustively vetted by both the Drug Policy Task force of the Colorado Commission on Criminal and Juvenile Justice and by the voting members of the Commission itself, which includes representatives of the Attorney General’s Office, the Public Defender’s Office, the Department of Public Safety, prosecutors, chief’s of police, county sheriffs, drug treatment providers, legislators, and numerous other interested parties.

The Independence Institute has long advocated drug law reform.  In this 2005 issue paper, “Getting Smart on Crime: Time to Reform Colorado’s Drug Offense Sentencing Policies,” I recommend lowering both use and possession of illegal drugs from felony crimes to misdemeanors and the creation of sentencing grid for controlled substance offenses separate and distinct (and much less draconian) from the sentencing structure for violent and property crimes.

Here is what HB 1352 does with regard to drug possession offenses:

Here is what HB 1352 does with regard to marijuana offenses:

The bill is sponsored by Colorado Springs Republican Representative Mark Waller and by Senators Pat Steadman (D-Denver) and Shawn Mitchell (R-Broomfield). HB 1352 now heads to the Senate, and is scheduled to be heard by the Senate Judiciary Committee on Monday, April 26.

At issue: a federal statute bans commercials depictions of “animal cruelty,” namely a depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if killing or other action violates the law where the “the creation, sale, or possession takes place.” The statute would therefore outlaw the sale in the United States of a bullfighting video produced in Spain (since bullfighting is not legal in the United States), the sale of any hunting video or magazine in the District of Columbia (since no hunting is allowed in the District) or the sale of a crossbow hunting video or magazine in the many states which allow hunting with compound bows but not with crossbows.

There is an exception for a depiction “that has serious religious, political,scientific, educational, journalistic, historical, or artistic value.”

An 8–1 decision by written by Chief Justice Roberts held the statute to violate the First Amendment. The decision declines the government’s invitation to create a balancing test in order to add a new exception to the First Amendment. The government’s promise to enforce the very overbroad statute narrowly could only rescue the statute if the statutory language were susceptible to a limiting construction.

Relying on amici briefs from two organizations to which I happily belong (the Professional Outdoor Media Association and the National Rifle Association), the Court details how the statute means that the sale of videos and magazines depicting lawful hunting in one state would be a felony if the video were sold in a state whose regulations did not allow that particular type of hunting.

The government argued that hunting videos and magazines are protected by the exception for depictions of “serious” educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen’s Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least “scant” value. However, the majority declines to read “serious” as equivalent to “scant.” Therefore, the statute outlaws most of the billion-dollar industry in hunting videos and magazines, at least if any of those videos are ever sold in the District of Columbia.

Accordingly, the statute is plainly invalid under well-established First Amendment doctrine.

Justice Alito, the lone dissenter, would read the statute to encompass only “animal cruelty” and would also presume that any depiction of lawful hunting has “serious” value. He notes “the predominant view in this country has long been that hunting serves many important values, and it is clear that Congress shares that view.” (Citing many presidential proclamations of National Hunting and Fishing Day, which was instituted at congressional request).

Further, writes Justice Alito, “it is widely thought that hunting has ‘scientific’ value in that it promotes conservation, ‘historical’ value in that it provides a link to past times when hunting played a critical role in daily life, and ‘educational’ value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits. And if hunting itself is widely thought to serve these values, then it takes but a small additional step to conclude that depictions of hunting make a non-trivial contribution to the exchange of ideas.” Therefore, Justice Alito would construe the statute so narrowly that it reaches its intended targets (“crush” videos and dog-fighting videos) without causing extensive collateral damage.