Archive for the 'Constitutional History' Category

All Kopel, All the Time

Posted by on Feb 13 2013 | Constitutional History, Constitutional Law, Kopelization, Law schools, Second Amendment, U.S. Constitution

I’m sure like me, you feel like there is just not enough Dave Kopel in the world to satiate your unquenchable thirst for the Second Amendment, law, history, and everything else Dave knows everything about. We’ll never get enough Kopel, but we can get close. I’ve been visiting Dave’s YouTube channel over the past few weeks and it’s a great way to keep up with everything he’s doing on air. It’s updated regularly so make sure you subscribe to it.

Below you’ll find the latest Dave video – a debate on international gun control held yesterday at DU. It’s basically an hour of Dave dropping knowledge on the panel and the room. Truly remarkable.

no comments for now

Why Louis Michael Seidman should not ignore the Constitution

Posted by on Jan 05 2013 | Constitutional History, Constitutional Theory

Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.

Comments Off for now

Speaker Ferrandino And Constitutional Wonkery On Devil’s Advocate Tonight

Posted by on Jan 04 2013 | Constitutional History, Constitutional Law, Idiot Box (TV Show), Politics, PPC, U.S. Constitution

Friday night means public affairs tv excellence with the Independence Institute on Colorado Public Television 12.

First, catch Independence Institute research director David Kopel on on the roundtable show, Colorado Inside Out at 8:00 PM. Then stay tuned for Devil’s Advocate at 8:30. First, incoming Speaker of the Colorado House of Representatives Mark Ferrandino sits down with Independence Institute president Jon Caldara about what to expect in the upcoming legislative session. Then Independence Institute constitutional scholar Rob Natelson comes by to explain how Congress ignored the constitutional requirement that spending bills originate in the House in the recent “fiscal cliff” deal, and why it matters.
That’s tonight starting at 8:00 on Colorado Public Television 12.

no comments for now

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.

Comments Off for now

After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

1 comment for now

Louisiana amendment to strengthen right to arms, on November ballot

Posted by on Oct 03 2012 | Constitutional Amendments, Constitutional History, Constitutional Law, elections, guns, Militia, Popular Constitutionalism, Right to carry, State constitutional law

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

Comments Off for now

AUDIO: Penn Pfiffner, Rob Natelson on Mike Rosen Show

Posted by on Aug 20 2012 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Media, PPC, TABOR, Taxes, U.S. Constitution

This morning on 850 KOA’s Mike Rosen Show, two of our senior fellows joined Mike in studio to discuss the lawsuit against our Taxpayers Bill of Rights (TABOR). Officially called Kerr v. Hickenlooper in federal court, the suit attempts to kill TABOR in Colorado because it allegedly violates our United States’ Constitution’s guarantee clause. The guarantee clause, ehem, guarantees us a “republican” form of government. No one expected the lawsuit to go very far and indeed, it came as quite a surprise when one of our federal judges allowed the suit to proceed.

Now we defenders of the TABOR amendment are left scratching our heads wondering how this could be, and curiously, whether there is any merit to the case. That’s where senior fellows Penn Pfiffner of our Fiscal Policy Center and Rob Natelson of Constitution Studies come in. In their 30 minute segment on the Mike Rosen program, they explain the background of the case, why it matters, and most importantly, why it’s total bunk (and deserves to be thrown out).

1 comment for now

Dave Kopel on the Aurora Theater Shooting

Posted by on Jul 25 2012 | Constitutional Amendments, Constitutional History, Constitutional Law, guns, Kopelization, Media, PPC, Second Amendment, U.S. Constitution

When any tragic event erupts anywhere around the country involving a firearm, our Research Director and Second Amendment scholar Dave Kopel is in high demand for commentary. Below you’ll find the synopsis of Dave’s commentary on the Aurora theater shooting thus far. I’ll continue to update this page as more comes out.

Aurora Theater Shooting Coverage:

PBS News Hour.
July 23, 2012. Kopel appears at 4:04, at start of a 10 minute segment.

Colorado Inside-Out.

Patricia Calhoun, Mike Littwin, April Washington, and Kopel discuss the Aurora murders. July 20, 2012. 27 mins.

Postgame
: more on the murders.

Don’t turn Aurora killer into celebrity
. USA Today.
July 19, 2012.


Kopel and Eugene Volokh quoted in New York Times, on Colorado gun laws.
July 20, 2012.


Brady Campaign staff and Kopel webchat on USA Today. July 19, 2012.

Size of ammunition cache not unusual, say gun experts.
By Joey Bunch. Denver Post. July 22, 2012.


Kopel and Piers Morgan agree: Thursday would have been the better day for a gun control debate. CNN. July 19, 2012. Transcript.

CNN Reliable Sources. Howard Kurtz bemoans “a troubling thing that television does,” namely the rush to “turn such an atrocity into ideological fodder while the victims are still being treated.” As an example, plays Morgan/Kopel interchange, with Morgan insisting a gun control debate must take place on the night of the crime. July 22, 2012. Transcript. Video.

A Land Without Guns: How Japan Has Virtually Eliminated Shooting Deaths.
By Max Fisher. The Atlantic. July 23, 2012. Discusses Kopel’s
article on Japanese gun control. (Spanish text of the article available here.) The article is an excerpt from a chapter in Kopel’s book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? The book was named Book of the Year by the American Society of Criminology, Division of International Criminology.

Public health leaders ‘afraid to say guns’. By Katie Kerwin McCrimmon and Diane Carman. Health Policy Solutions. July 24, 2012.

Tuerie d’Aurora: armes à feu à profusion. By Nicolas Bérubé. La Presse (Montreal). July 23, 2012.

Denver sörjer offren efter skjutningen. Swedish National Radio. July 22, 2012.

USA’s vapenlagar ohotade trots Denver-skytten
. Swedish National Radio. July 22, 2012.

NPR: Talk of the Nation, hosted by Neal Conan. July 25, 2012.


1 comment for now

Obamacare Decision, Waldo Canyon Wildfire on Devil’s Advocate

Posted by on Jul 13 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Idiot Box (TV Show), Necessary and Proper, obamacare, PPC, U.S. Constitution

Friday night means the Independence Institute’s public affairs television show Devil’s Advocate on Colorado Public Television 12. First, Independence Institute constitutional scholar Rob Natelson sits down with host Jon Caldara to discuss his amicus brief on the Necessary and Proper Clause of the U.S. Constitution in the recent Obamacare Supreme Court case and how that clause affected the rulings. Then Colorado Springs Gazette editorial page editor Wayne Laugesen swings by to talk about the Waldo Canyon wildfire. That’s tonight at 8:30PM on Colorado Public Television 12.

no comments for now

Independence Institute Writers In the News

Posted by on Jul 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Health Care, obamacare, PPC

The Supreme Court Obamcare decisions and the first Amendment are topics of recently published works by Independence Institute writers.

In the Denver Post, Health Care Policy Center director Linda Gorman lays out some straightforward, market-based health care reforms should Congress attempt to replace and repeal Obamacare.  Writes Linda:

Advocates of Obamacare claim that unless we let the government (mis)manage even more of the health care system, there will no health safety net.

To the contrary, with patient-centered reforms, we can reduce ordinary health care costs for everyone, make insurance for extraordinary costs accessible and affordable, and provide an effective safety net for the poor.

Whole thing here.

In the Great Falls (Montana) Tribune, Rob Natelson writes on the importance of First Amendment freedoms when politicians, from both sides of the aisle, go gunning for media outlets they don’t like, using Great Britain as an example.  Writes Rob:

At a minimum, mainstream reporters have to mute what they write about sitting office holders so they can maintain access to sources. Less scrupulous reporters amplify messages promoted by favored politicos and dig up (or manufacture) dirt against political opponents.

Whole thing here.

no comments for now

« Prev - Next »

Clicky Web Analytics