Archive for December, 2012

Political Year In Review On Devil’s Advocate Tonight

Posted by on Dec 28 2012 | Idiot Box (TV Show), Politics, PPC

Repressing what happened politically this year? Maybe just been too drunk to remember? Well, acceptance is the first step to recovery, so tune in to the Independence Institute’s public affairs tv show, Devil’s Advocate, tonight as host Jon Caldara is joined by Denver Post statehouse reporter Tim Hoover and Grand Junction Sentinel statehouse reporter Charles Ashby for a review of the 2012 political year in Colorado, and some pontification about the 2013 Colorado legislative session. That’s tonight at 8:30 on Colorado Public Television 12.

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Anti-Fracking Fools and Food Police on Devil’s Advocate Tonight

Posted by on Dec 21 2012 | energy, Idiot Box (TV Show), nanny state

Is tonight the magical third date with that certain someone special? You know what that means, right? Finally time to watch the Independence Institute’s public affairs television show Devil’s Advocate together. First, Independence Institute Energy Policy Center director Amy Oliver sits down with host Jon Caldara to discuss the increasingly threatening and aggressive behavior of anti-fracking protestors in Colorado. Then local author Karen Kataline swings by to discuss her new book, “Fatlash!: Food Police and the Fear of Thin.”

That’s tonight at 8:30 on Colorado Public Television 12, right after Colorado Inside Out at 8:00 featuring Independence Institute research director Dave Kopel.

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First, Grieve for the Children

Posted by on Dec 18 2012 | Purely Personal, Right to carry, Second Amendment

As you may know, I lost my daughter Parker, my only child at the time, to cancer just days before her first birthday. I cannot express the pure terror of that experience. The reality of shopping for a coffin and choosing a burial plot for your only child is a horror that is thankfully rare in modern America.

It is with this personal experience I have a special sensitivity to what the families in Newtown, Connecticut, are now suffering. I lost my child to illness, and at least had the opportunity to try to comfort her and tell her how much I love her. The families of Newtown had no such luxury, no such last goodbye.

For the last decade, I have had an internal battle trying to understand why God or nature would cause my little girl to suffer so. But for these families, that internal struggle will be greatly expanded. How does a parent even begin to comprehend why another human would steal away their child in such a way?

With a dead child and a son now living with Down syndrome I have lived through experiences I despise. Even so, I cannot begin to imagine the hurt and raw fear that these people are now forced to endure. Our thoughts and prayers are with them.

I have learned something of grief, and the long, slow process it takes. Fortunately, there were many dear friends, family, and professionals to help me steer my way through it. Grief may be delayed somewhat, but it never can be avoided. And it is a bitch.

In the immediate madness after my daughter’s death I had little hope, and thoughts of drastic actions filled my mind. A counselor with special expertise in grieving was quite stern with me. Under no circumstances was I to make any major changes in my life for at least a year. Simply, there was no way I, or anyone in my situation, could see reality clearly enough and calmly enough to weigh important decisions.

I wasn’t to kill myself, quit my job, move away, squander my savings, start doing drugs, or anything for at least a year. And I so desperately wanted to do all those things at different times. She insisted I wasn’t to allow the pain and madness drive a decision that would be hard or impossible to undo if it was wrong.

Grieve first, then make decisions — not the other way around.

This advice not to make decisions during such pain is echoing through by body today as strongly as it did when I wanted to take all those insane actions myself. If I had gone down even one of those paths, it would have been a massive mistake. I see that now. My counselor was right. I can’t thank her enough.

I fear that we, collectively, are not wise enough to take this advice today. And we so need to. In the immediate pain and madness of this crime, the desire to do something, something big, something different, is nearly overwhelming, uncontrollable. I know what this feels like all too well. It feels like it makes all the sense in the world to ban certain firearms, throw restrictions on the law-abiding, disarm civilians, turn ourselves against the Bill of Rights, just as my desires made perfect sense to me during my time of pain.

But given my experience, I worry where we will find ourselves years from now if we allow grief and the madness of pain to take us down a path from which we can’t return. Let us grieve. Let us walk through the pain and hurt and fear. Clear thinking will return, in time. Then let us talk clearly and calmly about the serious decisions that might change us forever.

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Amendment 64 Passed, Pot Is Legal. Now What?

Posted by on Dec 11 2012 | Idiot Box (TV Show), PPC

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Moore v. Madigan, key points

Posted by on Dec 11 2012 | guns, Right to carry

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,  Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359, 1432–33 (1998)—a more limited prohibition than Illinois’s, however.” Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois’s carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller’s exceptions: “children, felons, illegal aliens, lunatics, and in sensitive places such as public schools.” Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat.  Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But “Our principal reservation about the Second Circuit ’s analysis.” Posner writes, “is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: “Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.”

Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into “a vast terra incognita.” Posner agrees, but points out that the new world “has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts.”

The Illinois carry ban is illegal. The Court’s mandate will be stayed for 180 days, “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”


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Does any government have the legitimate power to ban medical marijuana?

Posted by on Dec 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

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Private space exploration and resentful demagogues

Posted by on Dec 10 2012 | Uncategorized

That private companies are taking up the space exploration challenge should be exciting news for everyone.

The U.S. government, now heavily riveted to its role as a redistribution machine, is too loaded with debt to carry out the manned moon exploration it began in the 1960s. So at long last entrepreneurs are stepping into the breach.

But what should be an occasion for celebration is seized by some to promote resentment.

Today’s Denver Post reports on reaction to a Boulder, Colo.-based consortium’s plan to send people back to the moon. Lynda Williams, a junior college instructor in California sees this great news merely as an opening to spread dislike and distrust.

“Many people (meaning, of course, her and a few of her pals) are concerned that space tourism is a Trojan horse for the eventual control of the moon, for a resources grab, using the billionaires to bankroll the startup,” said Lynda Williams, a physics professor at Santa Rosa Junior College.

At least according to the Post, Williams never makes clear just what is evil about a privately financed “resources grab” that does not hurt the earth’s environment or anyone else. Especially since entrepreneurs will not be able to cash in on lunar resources without making them available to others at competitive prices.

Williams goes on: “Should the common U.S. man and woman, the 99 percent, pay for the costs and risks of the ‘space happy’ dreams of billionaires?”

Williams works at a taxpayer supported college, so she apparently has no objection to the “99 percent” being forced to pay for her own happy dreams. But more to the point, her comment, at least as reported, is ignorant as well as malicious: One of the beauties of private space travel is that the public does NOT have to pay for it. And, like other entrepreneurial activities, private space travel promises spill-over effects that benefit us all but cost us nothing.

She goes on: “Whatever nation controls the moon controls the Earth.. . . If you had a moon base with space weapons, you could control all the launches on Earth.”

Uh? Aside from this statement’s dubious military wisdom, one of the great things about private space exploration is that it does NOT involve weapon-wielding governments. Even the best armed private citizens will have nowhere near enough armament to threaten others from a moon base.

Bottom line: Space entrepreneurs merit cheers not jeers. And some people need to stop spreading resentment and get a life.

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Bleg on U.N. extreme interpretations of treaties, and of extreme interpretations of Americans with Disabilities Act

Posted by on Dec 05 2012 | International Law, Treaties

Earlier this week, the Senate rejected the proposed  U.N. Convention on the Rights of Persons with Disabilities. Among the reasons for the rejection was fear that, even if the Convention’s language itself was acceptable, the future interpretation of the Convention would be in the hands of a U.N. bureaucracy, which might invent novel or excessive interpretations. Therefore, I respectfully request commenters to describe previous situations in which a UN body has, in the commenter’s view, made an inappropriate interpretation or application of a Convention of Treaty.

And since the CRPD was modeled, in part on the U.S. Americans with Disabilities Act, commenters are also welcome to point out some of what they consider to be the most extreme, inappropriate, or unexpected applications and interpretations of the ADA itself.



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Kopel on CNN’s Piers Morgan Show Tonight

Posted by on Dec 03 2012 | guns, Kopelization, Media, Second Amendment

Catch Independence Institute Second Amendment scholar and DU law professor David Kopel on CNN’s Piers Morgan show tonight at 7:00 Mountain Standard Time. They will be discussing (and debating) gun control post Kansas City Chiefs tragedy.

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