To showcase just how diverse my TV show Devils Advocate is, this past Friday I had resident constitutional scholar Rob Natelson on and acclaimed performance poet Shawn Welcome on for 15 minutes each. Below you’ll find the shows:
Archive for the 'Constitutional Law' Category
Rob Natelson, our Senior Fellow in Constitutional Jurisprudence, was just cited in the U.S. Supreme Court. In June, Justice Thomas cited Rob’s work by name 12 times in two separate cases — an exceedingly rare honor for a legal scholar. This month, the Harvard Journal of Law and Public Policy published Rob’s short article on the constitutional amendment process. As its name suggests, the Harvard Journal is one of the nation’s most prestigious law reviews. The same journal has agreed to publish Rob’s ground-breaking article on the original meaning of the Recess Appointments Clause — a section of the Constitution now front and center in the debate over President Obama’s practice of appointing officials without the Senate approval.
Rob also is in increasing demand as a speaker. On June 14, he keynoted a national program in Colorado Springs for the Intercollegiate Studies Institute. In July, he’s presenting several programs in Montana. And in August, he’ll give addresses on the Constitution to two national organizations of state lawmakers—the conservative American Legislative Exchange Council and the more liberally-leaning National Conference of State Legislatures. Rob also regularly gives talks for Colorado citizens’ groups and is a regular on two Colorado radio shows and one in Montana.
Wouldn’t it be great if someone wrote a short essay about the right to keep and bear arms and its opposition in America? Perhaps something of similar length and persuasion as Thomas Paine’s “Common Sense” or the Federalist Papers?
Well, our resident Second Amendment scholar, historian, and law professor Dave Kopel did just that for Encounter Books. In his latest book appropriately titled, “The Truth About Gun Control,” Dave gives the reader a foundation for why the right to keep and bear arms is important, who fought this inherent right and why, and what’s at stake today from the likes of Mayor Bloomberg and President Obama. As Dave says, the book is meant to be read in one sitting. Or as I like to say, the book can be read to me in one sitting.
If you’d like to hear more about the book, check out this iVoices.org podcast. He and Justin go into more detail about the book and why it’s an important piece in today’s fight against the gun control machine.
If reading the book and listening to the podcast don’t entirely whet your appetite, I may have just the thing for you. On Tuesday, May 14th, we are holding a book signing and presentation with Dave here at the Freedom Embassy. Admission is FREE, but you must RSVP online or by phone at 303-279-6536. For more information, visit our Facebook page here.
The media correctly portrayed Wednesday’s Senate vote against broad background checks as an enormous defeat for the anti-gun movement, and for President Obama, as he put so much of his political capital into it. His decisive defeat significantly weakens him on every other issue.
What might not be as well known is that the Independence Institute was a key player in this success.
We were the only organization to put out a detailed explanation of how Senator Schumer’s background check bill would’ve turned almost every American gun owner into a felon, because it applies not only to gun sales, but also temporary transfers, like lending your shotgun to a friend or family member.
When the gun control lobby realized they couldn’t pass Schumer’s background check, they then proposed the Manchin-Toomey substitute. It was drafted secretly and hastily, and the plan was to rush it through the Senate. Our Second Amendment scholar, David Kopel, spent long & late nights writing articles on Volokh.com and National Review Online explaining how poorly written it was, making it full of unintended consequences. For example, it supposedly outlawed federal gun registration, but when you look carefully at the statutory language, it actually legalized one form of federal gun registration which is currently illegal.
Kopel’s work helped the Senate see that these bills, which were supposedly just about background checks on sales, were actually laden with many other anti gun provisions.
We were there from the very beginning of this fight. According to Senate aides, Kopel’s testimony before the Judicial Committee on January 30 was crucial in stopping a federal ban on so-called “assault weapons.” And from the very moment President Obama began using the horrible murders in Newtown as pretext to crack down on law abiding gun owners, Kopel was in the national media providing the facts and promoting genuine reforms which would actually help public safety.
Joe Biden lobbied hard here in Colorado to pass a litany of anti gun bills on the state level, which were intended to set the stage for a national ban. Kopel’s expert testimony in the state legislature, along with our broad outreach in social media and on YouTube, helped lead to the defeat of two of the worst bills: the ban on licensed carry on college campuses and the bill allowing lawsuits against gun manufacturers. Our work also helped make the bills that did pass significantly less bad than they were to start with.
For the anti-gun movement, Colorado was supposed to be an easy victory leading them to victories elsewhere. Instead they paid a HUGE price for their limited victories in Colorado, and that price will escalate significantly as we provide pro bono representation to Colorado Sheriffs as we lead the legal fight to declare these bills unconstitutional.
Join us for a book signing with our Second Amendment scholar Dave Kopel on Tuesday, May 14th. He will be giving a presentation on his new book, “The Truth About Gun Control,” and signing copies following the Q and A. For more details and to RSVP, please go here.
We fight for Freedom with a long-term battle plan that works. These victories are even more proof. Thank you for being a part of it.
Independence Institute friend and long-time contributor Ari Armstrong shot this video of Constitution scholar Rob Natelson speaking in Grand Junction on gun rights, the Second Amendment, and Colorado’s new gun controls. We can’t thank Ari enough for shooting, editing, and posting the video.
And here is the whole 34 minute speech.
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.
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.
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.
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.
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.