2008 Archive: January-March

Late last year, I wrote about the case of Samuel Golubchuk, an elderly Canadian man whom his doctors wish to euthanize, over the strong objections of his orthodox Jewish family. (Hastening someone's death by withdrawing life support is known as "non-aggressive euthanasia.") A recent policy statement from the College of Physicians and Surgeons of Manitoba, asserts the power and the duty of physicians to euthanize patients, notwithstanding the objections of the patient or his family. Last week, a Winnipeg trial court issued an injunction requiring continued care for Mr. Golubchuk, pending a full trial on the merits.

According to the decision, Golubchuk's relatives
 

have produced an affidavit of a neurologist who practises in New York and has reviewed the entire hospital record of Grace Hospital. He has noted an absence of any examination of the plaintiff by a neurologist, any brain-imaging such as with CT scan or MRI, or other measurement of brain activity. He stated that the record contains many references to the plaintiff being awake and making purposeful movements that have not been reported by or explained by the defendants’ deponents. He stated that the plaintiff has not been assessed for aphasia, locked-in syndrome or other treatable neurological illnesses, which could account for his apparent lack of consciousness. He concluded on that point:
11. Furthermore, according to the documentation in the medical records, Mr. Golubchuk’s condition has demonstrably improved (Exhibit “D”). There is no evidence whatsoever that he is brain dead, close to brain dead, or dying, from a neurological point of view. He has enough higher cognitive function to not only be considered awake but to make frequent, purposeful movements and engage in other purposeful activities.
 

I manage website A with MS Frontpage 2003. On one of the pages on site A, I would like to include the most-recent contents of an RSS feed from site B (which is a Typepad weblog). How do I accomplish this?

A recent article in the Texas Review of Law and Politics, by my Independence Institute colleague Rob Natelson (who is also a constitutional law professor at the University of Montana) applies some cultural context to the original meaning of the spending clause.

At the time of the Founding, the legal principles of "fiduciaries," "servants," or "agents" were well-known. A fiduciary/servant/agent was expected to act impartially, not for his own self-interest, on behalf of the principals. For example, if a person were the trustee of an estate for three children, the trustee would be required to give each of the children equal earnings from the trust. (Unless there were a good reason not to. i.e., the one child was independently wealthy from other income; one child had made an improvident marriage).

Natelson argues that the fiduciary principles are incorporated into the Constitution, and provide the basis for "rational basis with bite" review of congressional spending. (That is, until the 1936 Butler case is over-ruled, and Congress is again required only to spend in furtherance of enumerated powers, rather being allowed to spend for anything it chooses.)

For example, Congress spends money to establish a National Institute of Obesity Research in Mississippi. The spending will provide a much greater financial benefit to Mississippi than to any other state, but the purpose of the NIOR is clearly to benefit the entire nation, by improving everyone's health. This spending passes the rational basis with bite test.

In contrast, consider the earmark which former Senator Conrad Burns created, in order to provide funds for capital construction at the University of Montana Law School. This would appear to be special-interest spending for the benefit of a single state, not for the nation as a whole. Such spending would fail the rational basis with bite test. If, perhaps, Congress made a finding that some states were chronically underlawyered, and provided capital construction grants for expanded law school facilities in all such states, then the spending might pass the Natelson test. (The above examples are my own, not Natelson's, although he does cite the Montana earmark as an example of pork.)

Published today on History News Network, an article by David Young which critiques an amicus brief filed by 15 history/law professors, arguing against the standard model of the Second Amendment. If you would like a copy of the article with citations, just go to Young's website, and e-mail him a request. If you are interested in studying the original documents about the Second Amendment from the Founding Era, Young's book The Origin of the Second Amendment is an outstanding, and amazingly thorough resource.

The Texas Review of Law and Politics has a review of the new book by co-authored by my Independence Institute colleague Joseph C. Smith, Under God: George Washington and the Question of Church and State. The book examines Washington's views and practices on issues of related to government support of religion. The book concludes that Washington was far less concerned about separation of church and state than were Jefferson and Madison, and that Washington's views deserve greater consideration from modern courts than they have received.

A short video statement from a friend of mine, whose family lived, and still lives, one block from the World Trade Center. She describes Senator Clinton's role in asking the tough questions about air quality near the WTC in the weeks and months after the attack. The video is a powerful, personal, and credible testimonial to the best side of the detail-oriented Senator Clinton.

Heritage Foundation event last Thursday, Senators Kay Bailey Hutchinson (R-Texas) and Jon Tester (D-Montana) discuss their congressional amicus brief in D.C. v. Heller. Independence Institute iVoices.org podcast, in which I discuss the law enforcement amicus brief I wrote. Tonight on NRA News, at 11:20 Eastern Time, I will be interviewed about the brief. (The broadcast is available on Sirius 144, and on the Internet, and is available by podcast for the day after the program.)

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC's theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC's argument is contrary to the constitutional plan for federal militia supremacy.

Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.

No brief filed by Petitioner or its amici addresses these issues.

Below the fold: Maryland Governor Herbert O'Connor's March 10, 1942 radio address, asking for volunteers from, inter alia, the "membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type" to help defend Maryland against potential German incursions, such as saboteurs. "[T]he volunteers, for the most part, will be expected to furnish their own weapons....The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity."
 

In the Supreme Court's Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicis should compel the present Court not to recognize the Second Amendment as an individual right.

A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit's recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.

These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).

A brief of the Citizens Committee for the Right to Keep and Bear Arms, and for several scholars, takes an unusual approach. As far as I know, it's the first brief of its kind in a Supreme Court brief (although my knowledge of amicus briefs is far from comprehensive). Written by Washington state lawyer Jeff Teichert, the "Errors Brief" focuses entirely on refuting what it sees as plain errors in the briefs of DC and DC's amici. The 9000 word limit drastically reduced the number of items which could be addressed, and the brief chooses to address some items at relatively great length, rather than greatly shrinking certain discussions so as to address more items briefly.

The brief of the Goldwater Institute in District of Columbia v. Heller is another brief that merits study by persons interested in seeing a model of a first-rate Supreme Court brief. Lawyers on the brief are led by Bradford Berenson, of Sidley & Austin, and by Clint Bolick, of Goldwater.

The brief's focus is responding to a section in the Solicitor General's brief, which had argued for intermediate scrutiny as a the standard of review in Second Amendment cases. The Goldwater brief is not a brief of firearms law experts; it is the brief of Supreme Court precedent experts, and it cites a vast number of cases to make its argument that strict scrutiny is the proper standard.

The Goldwater brief has an inherent advantage, since it devotes all 9000 words to a topic which the Solicitor General covered in just a few pages. But even with the limited space available, the Solicitor General's brief was surprisingly shallow. The SG brief more or less declares its intermediate scrutiny test by fiat, and for support pointed to some election law cases.

Yet a short, well-written brief from the Libertarian National Committee points out, the cases cited by the Solicitor General themselves have a strict scrutiny standard. (Strict scrutiny for an "undue burden" on voters, intermediate scrutiny for everything else.) The Solicitor General brief just pointed to the intermediate scrutiny part of the election cases.

My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due. (UPDATE: A VC reader points out that the meta-data for the SG's PDF says that the file was created at 9:14 PM on January 11, the due date.) The brief has no Table of Contents or Table of Authorities--both of which are required by Supreme Court rules. My guess would be that there was no time to prepare these mandatory parts of the brief because the brief took a sudden change in direction, perhaps on the day it was due, and all the available time was consumed by trying to cobble together an intermediate scrutiny section of the brief. Just a guess, but the absence of a TOC and TOA surely suggests that there was some unanticipated time crunch at the end. (UPDATE: Another commenter says that the SG frequently files late, and adds the TOC and TOA later.]

Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I'm not sure it adds much to the treatment of these issues in Respondent's brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).

Part II supports the D.C. Circuit's having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General's argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.

On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.

The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit's decision would unleash a dangerous set of challenges to gun controls.

Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).

At Concurring Opinions, Michael O'Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.

It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage.

In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the "collective right" theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is "narrow individual right," a right which applies only to persons actually on duty in a state militia.)

Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.

The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR's AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative's question about the NFA "escaped" from the "provision in our Constitution denying the privilege to the legislature to take away the right to carry arms."

There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief's claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.

Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC's ban on handguns in the home, rather than addressing restrictions on uncommon guns.

Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit's Emerson case, that the Second Amendment is no bar to the federal government taking away people's guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman's words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent "a constitutional moment" repudiating the Waxman/Reno view of the 2d Amendment--just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: "You know, I believe in the Second Amendment. People have a right to bear arms."

The brief of Academics for the Second Amendment discusses the drafting and ratification of the Second Amendment. It argues that the history clearly points to an uncontroversial individual right to arms for private purposes, and argues that DC's theory of the Amendment's meaning is based on proposals which Madison and Congress rejected. My favorite part of the brief is its use of the phrase "a tub to the whale."

A brief from the Institute for Justice supplies the history of the Reconstruction Congresses, and of the 14th Amendment. It shows that (whatever implications one might draw about incorporation), the understanding of the Second Amendment at that time was that it was a personal right to arms for private purposes, particularly the purpose of defending the homes of freedmen from Klan attacks.

And a brief for the President of the Pennsylvania Senate provides the history of the right to arms in that state.

These briefs counter arguments raised by DC and by its amici historians. As both these briefs acknowledge, proving that the 1776 Pennsylvania Constitution right to arms was not a right to self-defense arms is essential to their cause. Strangely, they cite a forthcoming article in a Rutgers law review, written by a protégé of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny. I am unaware of any pre-publication article that has been cited by Heller and his amici which is not already available on SSRN or another public web site.

Today the Independence Institute filed my amicus curiae brief with the United States Supreme Court, in the case of District of Columbia v. Heller.

The Independence Institute brief is joined by a broad coalition of law enforcement: the Maryland State Lodge of the Fraternal Order of Police (by far the largest rank-and-file police organization in Maryland), 29 of California’s District Attorneys, the San Francisco Veteran Police Officers Association, the Texas Police Chiefs Association, the Southern States Police Benevolent Association, and many others.

Notably, the lead amici in the brief are the two national organizations of police firearms instructors, the International Law Enforcement Educators & Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). The brief explains how widespread civilian ownership of handguns contributes to the efficiency and success of police firearms training.

Part One of the brief summarizes the vast body of evidence showing how law-abiding citizens with handguns contribute to public safety. Surveys of criminals and of law-abiding citizens both indicate that defensive gun use is frequent in the United States, and provides a substantial deterrent to crime. Most notably, because approximately half of all American homes have a gun, only 13% of American home burglaries take place when the victim is home. In nations where handgun ownership is rare or illegal, the home invasion rate is about 50%.

A large number of confrontational burglaries (nearly a third) result in assaults or rapes, so defensive gun ownership in the home also reduces the assault and rape rates. The assault reduction alone makes the U.S. violent crime rate about 9% lower than it would be if home invasions took place at the rate typical in other countries. But in DC, the use of any gun for self-defense in the home is illegal.

DC and its amici claim, in effect, that ordinary, law-abiding citizens are too hot-tempered and clumsy to own a handgun for home protection. Part II of the brief refutes this invidious prejudice. The brief shows that the large majority of murders, including domestic homicides, are committed by people who already have criminal records--not by previously-law-abiding citizens. A half-century of data show that gun accidents have declined by 86% in the U.S.

Before the 1976 handgun ban, only 1/2 of 1% of crime gun seized by the D.C. police were lawfully-registered to District residents. Thus, the DC City Council cracked down on a population group (gun owners who obeyed the city's registration and licensing laws) which had almost nothing to do with the city's crime problem.

Part III relies on practical police experience to explain why handguns are the best arms for home defense, particularly in an urban area such as Washington, D.C.

Part IV suggests that strict scrutiny is the proper legal standard of review for most Second Amendment issues. Precedents from the U.S. Supreme Court and from state supreme courts point to the unconstitutionality of the DC ban on handguns and on self-defense.

Social science data about self-defense were little discussed in the briefs of D.C. and its amici, except that the American Public Health Association (APHA) brief does have a section arguing against Gary Kleck's figure of 2.5 million annual defensive gun uses. Some empirical issues related to the law enforcement brief are also discussed in the American Academy of Pediatrics brief, and the D.C. brief itself.