Archive for October, 2010

Amicus brief in Calif. concealed carry case

Posted by on Oct 30 2010 | guns, McDonald v. City of Chicago, Uncategorized

(David Kopel)

Peruta v. San Diego is one of several cases challenging sheriff misapplication of California’s concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California’s statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have “good cause.” Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.


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Hot Lady Docs for Repealing ObamaCare

Posted by on Oct 29 2010 | Amendment 63, Health Care, PPC

You know, going to the doctors for my annual check up would be so much easier if my doctor was any of these fine ladies. Thanks to The Repeal Pledge, the Independents Women’s Voice, and American Majority Action, we can see the glorious result of lady doctors coming together against ObamaCare. These women have the beauty and the brains – and my complete attention. See for yourself:

Here is where you can sign the pledge if you know an elected official or you are a concerned citizen. Either way, I’m doing it simply because of the hot docs. YOWZAH!

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Prop 102 A Danger To Liberty; Antithetical To Principle Of ‘Presumed Innocent’

Posted by on Oct 29 2010 | Justice, PPC

Independence Institute Research Director and Constitutional Law Professor Dave Kopel explains why Colorado Proposition 102 is, among many other terrible things, “The Red Queen’s justice from Alice in Wonderland: punishment first, trial afterwards.”

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2010 Elections, State and National

Posted by on Oct 28 2010 | Idiot Box (TV Show), PPC

On this Friday’s Devil’s Advocate, I am joined by National Review Online’s Colorado political blogger Michael Sandoval and Mary Katherine Ham from Fox News and the Weekly Standard for some prognostication about the possible outcomes of the November 2nd elections, both here in Colorado and nationally. It’s a must see for political junkies. That’s this Friday at 8:30 PM on Colorado public Television 12. Re-broadcast the following Monday at 1:30PM.

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“Ronald Reagan, Extremist Collaborator”

Posted by on Oct 28 2010 | Politics, Polls

(David Kopel)

Just published at The New Ledger, an article describing the Democratic effort to label Ronald Reagan as an “extremist,” during his 1966 campaign for Governor of California. Thanks to all the VC folks who responded to my bleg a few days ago, and provided good research leads.


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Amending the Constitution to Save It: the History

Posted by on Oct 27 2010 | Government Largess, iVoices.org, PPC, U.S. Constitution

In the last installment, Rob Natelson spoke about an Article V convention and how it differed from a “constitutional convention.” This “convention for proposing amendments” would give the states a way to rein in the federal government’s power without having to rely on Congress to restrict itself. Believe it or not, the United States has a rich history with conventions that stretches beyond just the convention of 1787 – which Rob explains was definitely not a runaway convention. Listen to Rob tell all about conventions and why this topic is important in today’s world here on iVoices.org. And don’t forget to follow Rob on his personal blog constitution.i2i.org.

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Correcting yet more constitutional mistakes at the Denver Post

Posted by on Oct 27 2010 | Constitutional History, Constitutional Law, federalism, First Amendment, Health Care, History, obama, PPC, supreme court, The Founders, Thomas Jefferson, U.S. Constitution, U.S. Constitution, Uncategorized

Constitutional mistakes just keep coming out of the Denver Post.

One was the editorial board’s assessment that “ObamaCare” is somehow constitutional.

Two more mistakes have just come from Post columnist Mike Littwin. In his Oct. 23 profile of the Tea Party Littwin wrote, that “the founders’ visions were often in complete opposition.”

Actually, the Founders’ visions were remarkably consistent — their disagreements were about how best to achieve common goals. Those common goals included a limited, republican federal government held to trust-style standards and protecting personal liberty. (American dissenters from those goals were called “Tories” and fled the country or dropped out of public life after the Revolution.) You can find the details in my new book The Original Constitution: What It Really Said and Meant.

Littwin returned with another column on October 27, in which if he didn’t make an error, he certainly left an mistaken impression.

He wrote “It was only recently that O’Donnell was laughed at by a group of law students . . . for saying that the separation of church and state was not guaranteed by the First Amendment. It’s an old argument, since the words themselves aren’t in the Constitution. But it was Thomas Jefferson, one of your more important founders, who did say exactly that in an 1802 letter to the Danbury Baptists concluding that the First Amendment built ‘a wall of separation between Church & State.’”

What Littwin apparently doesn’t understand is that “separation of church and state” meant something different to Jefferson than it means in discourse today.

Today the term is used for the view that both federal and state governments must divorce themselves from all religious recognition, even at the risk of seeming anti-religion. Believers in this view are called “strict separationists.”

That was hardly Jefferson’s view, since when he was governor of Virginia he supported religious holidays and blasphemy laws.

Actually (as most recent scholarship confirms), the Establishment Clause of the First Amendment meant only that the federal government could not establish a national church or otherwise favor some religions over others. My own research on the subject appears here.
[For the future, please note that Jefferson is not a very reliable source of constitutional meaning anyway, since he was in France when the Constitution was drafted and ratified.]

Senate candidates Ken Buck and Christie O’Donnell have gotten a lot of flak for saying they don’t buy the current notion of “separation of church and state.” Critics have tried to portray this as an opinion that is somehow looney or extremist. If so, then the current Supreme Court of the United States is looney or extremist, because it doesn’t agree with strict separation, either.

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Michael Bloomberg’s astroturf group

Posted by on Oct 26 2010 | guns, Politics

(David Kopel)

Over at National Review Online, Ramesh Ponnuru notes a mailer from a group called “Americans United for Safe Streets.” The mailer slams Republican House candidate Keith Fimian over the so-called “gun show loophole.” Americans United for Safe Streets has a website, but other than providing an e-mail contact for a press spokeman, the site is quite opaque about what the organization really is, or who works there.

The explanation is simple. “Americans United for Safe Streets” is not a grassroots organization of united Americans. According to the Center for Responsive Politics, of the $502,000 which the group raised in 2008, $500,000 came from Michael Bloomberg.

By the way, there is no such thing as a “gun show loophole.” The laws for selling guns at gun shows are exactly the same as for selling guns anywhere else. The gun show bill which Bloomberg has been pushing in the current Congress is loaded with provisions unrelated to background checks at gun shows–such as authorizing the federal government to create a central registry of sales by federally licensed dealers from those dealers’ retail storefronts.


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Judicial Retention in Colorado

Posted by on Oct 26 2010 | Idiot Box (TV Show), PPC

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Reefer Madness and the Prohibition of Marijuana in the United States

Posted by on Oct 26 2010 | War on Drugs

(David Kopel)

My short essay for the Encyclopedia Britannica blog looks at the racist origins of marijuana prohibition. The essay is part of a two-day series of pro/con articles related to California’s proposition 19.


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