According to The Korea Times, the Obama administration has blocked efforts by the South Korean government to sell over a  hundred thousand surplus M1 Garand and Carbine rifles into the United States market. These self-loading were rifles introduced in 1926 and 1941. As rifles, they are especially well-suited to community defense in an emergency, as in the cases of community defense following Hurricane Katrina in 2005 and Hurricane Andrew in 1992. Along with AR-15 type rifles, the M1 rifles are the quintessential firearms of responsible citizenship, precisely the type of firearms which civic responsibility organizations such as the Appleseed Project teach people how to use.  

According to a South Korean official, “The U.S. insisted that imports of the aging rifles could cause problems such as firearm accidents. It was also worried the weapons could be smuggled to terrorists, gangs or other people with bad intentions.”

Regarding the second objection, any firearm lawfully imported into the United States would eventually be sold by a Federal Firearm Licensee who, pursuant to the background check system imposed by Congress (and endorsed by the NRA) would have to contact federal or state law enforcement to verify that the gun buyer is not prohibited from possessing firearms. Accordingly, the risk that the South Korean surplus guns might fall into the hands of gangsters or other bad people is exactly the same as with the sale of any other retail firearm in the United States. Notably, neither the M1 Garand nor the M1 carbine are concealable, and the M1 Garand is long, heavy, and bulky. Accordingly, the criminal utility of such guns is relatively low.

The second Obama administration objection is accidents. But in fact, increasing gun density in the United States has been associated with steeply declining rates of gun accidents. In 1948 there were .36 guns per person. (That is, about one gun for every three Americans.) By 2004, there was nearly one gun for every American. In 1948, there were 1.6 fatal gun accidents per 100,000 persons. By 2004, the rate had fallen by 86%, so that there were .22 fatal accidents per 100,000 persons. (For underlying data, see Appendix B of my amicus brief in Heller.)

Legally, it is indisputable that the guns are importable. Being over 50 years old, the rifles are automatically “Curios and Relics” according to federal law. 27 CFR section 478.11. Accordingly, they are by statutory definition importable. 18 USC section 925 (e)(1). Notwithstanding the law, the Obama administration has the ability to pressure the South Korean government to block the sale of the guns.

President Obama was elected on the promise that he supported individual Second Amendment rights. His administration’s thwarting of the import of these American-made rifles is not consistent with that promise.

UPDATE: I’ll be discussing this issue tonight at 11:20 p.m., Eastern Time, on NRA News. (Available live on the web, or via Sirius/XM channel 144, and also archived on the web for the following week.) The discussion will take into account the helpful contributions of some of the commenters, who have pointed out that the rifles were part of a lend-lease program, which means that the South Korean government is contractually barred from transfering the rifles without U.S. permission. As some other commenters point out, the win-win solution would be to resell the rifles via the Civilian Marksmanship Program, with the U.S. and South Korean governments agreeing to share the revenue.

Our friends at the Steamboat Institute are holding their second annual Freedom Conference for two days at the end of this month. The conference is going to be held in the swank Steamboat Grand luxury hotel on Friday, August 27th and Saturday, August 28th. As impressive as the accommodations are, the speaker list is even more impressive: Karl Rove, Dan Mitchell of Cato, Yaron Brook of the Ayn Rand Institute, Grover Norquist, Sharron Angle, Tony Blankley, Christopher Horner of CEI, the much too young Jason Mattera, and of course, our very own Transparency Czarina Amy Oliver of Mothers Against Debt (MAD). Amy will have the honor of introducing the beautiful Kellyanne Conway, and my favorite bedtime story, now formally called “The Year of the Conservative Woman.” And since I won’t be there to talk about The Right to Health Care Choice, Amy will be filling in for me to do that as well.

This is a must-attend event and if I weren’t going to be up at our sister think tank in North Dakota, you bet I would be there (come on, there’s going to be a Coyote Gold margarita party at the end!). Don’t miss this incredible opportunity, register here for the 2nd annual Freedom Conference!

The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance.

First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the classic bills of attainder that were well-known to the Founders–namely a parliamentary vote that someone be executed for treason or some other crime. Accordingly, for Bill of Attainder law in the United States, the ratio of settled law to gray zones is lower than for many other topics of constitutional law. In my view, the legal analysis from the District Court (ruling for ACORN) and from the Second Circuit (ruling against ACORN) are both plausibly based in precedent.  The Second Circuit examined matters of law de novo, so District Court’s legal analysis was entitled to no deference.

Here are the key points of the Second Circuit decision:

ACORN has standing to sue all the defendants. Even if ACORN has no interest in applying for Department of Defense grants, the fact that the DoD statute specifically forbids grants to ACORN causes a reputational injury to ACORN.

Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”

The government conceded on items (1) and (3). Accordingly the question is whether the federal funding cut-off constitutes “punishment.” Here again there is a three-part test (verbatim from the Second Circuit):

(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);

(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and

(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).

According to the Second Circuit, withholding of federal grants, especially in regards to a corporation rather than an individual, is not a traditional form of punishment, so item (1) is not satisfied.

The government passed item (2) of the test, because there was an eminently plausible non-punitive purposes: namely to efficiently manage federal funds by not giving taxpayer dollars to an organization which by its own admissions had extensive problems with accurate accounting and proper financial management, and which has an admitted record of embezzlement and criminal convictions of employees. 

As for item (3), the Second Circuit agreed that there were some floor statements by Congresspersons indicating an intent to punish ACORN for alleged crimes; “however, here, the statements by a handful of legislators are insufficient to establish — by themselves — the clearest proof of punitive intent necessary for a bill of attainder.”

The three-part punishment test examines all three factors together. Accordingly, even if (3) were a close call, the government was so clearly the winner on (1) and (2), according the Second Circuit, that the government prevailed.

My editorial comment: Long before Andrew Breitbart broadcast the hooker tapes, the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding. In retrospect, some of the ACORN employees in the Breitbart tapes were unfairly maligned, because they contacted law enforcement shortly after the pretend pimp and prostitute departed. The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.

While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.

On this Friday’s Devil’s Advocate, I am joined by Denver Post columnist Mike Littwin and Westword publisher Patty Calhoun to talk about Colorado’s recently decided primary elections. Who won and who lost, and what it all means for voters in November. That’s tomorrow night at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.

If you’re anything like me (and unless your balding and dyslexic you’re not), you hate out of control government spending and love buses. What happens when you combine a hatred of government spending and a love of pure American gas-guzzlers with luxurious bench seating?  The Spending Revolt Bus Tour! The bus tour is hitting the open road this summer and has several stops in Colorado. Tomorrow the 12th, the tour stops in Grand Junction before it continues onward to Dillon and Idaho Springs. Then on Friday the 13th, the bus makes an extended stop in Denver at – yup, you guessed it – the Colorado Automobile Dealers Association (duh) and the Cherry Creek mall. Finally, on Saturday the 14th, the bus heads down to the Springs in the morning.

Show the loony left you love two things they can’t stand – responsible government spending and vehicles that get less than 10 miles to the gallon. Visit the bus tour when it comes near you. Eat your heart out Al Gore.

The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale),  Gillian Metzger (Columbia), and me (Denver, VC). The moderator was  Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.

The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.

Our Transparency Czarina Amy Oliver’s campaign to mobilize mothers to take action against our government’s massive deficit spending is well underway with her organization Mothers Against Debt (MAD). All moms should find it disturbing that each baby born today is over $43,000 in the hole before they can even say their first words. If we can’t get Moms “MAD” about that, then I’m not sure what will. (On second thought, leaving the toilet seat up might do the trick). Amanda Teresi, co-founder and president of Liberty on the Rocks, interviewed Amy a couple weeks ago on how Mothers Against Debt got started, how it’s going, and why it is important to get Moms on board. So if you’re a Mom, or know a Mom, watch this interview and get MAD!