Kopel's Corner Archive, latter 2007

[David Kopel, December 26, 2007 at 6:28pm] Trackbacks

The Case of Samuel Golubchuk: The Government's Right to Kill the Terminally Ill

In 2006, the Terry Schiavo case attracted national attention in the United States, with a conflict between a woman's parents (who wanted to care for their daughter and keep her alive) and the woman's ex-husband (who wanted her feeding tubes removes so that she would die of dehydration, and who said that he was acting according to her wishes). Right now in Canada, a similar case is playing out, with one crucial difference: all of the man's family wants him to live, while his doctors want him terminated.

Samuel Golubchuk is an 84-year-old Orthodox Jew in Winnipeg, Manitoba. Hospitalized since October 26, he is believed by his doctors to be terminally ill, and to have suffered brain injuries which leave him unconscious. The doctors want him removed from his respirator and feeding tube. His family strongly objects on religious grounds, argues that where there's life there's hope, and says that he holds their hands during visits. It appears that Mr. Golubchuk has not been examined by a neurologist, or had tests performed which might confirm the Winnipeg doctors' belief about his brain function status.

Toronto professor Peter Singer, and of the rightfulness of killing humans with low degrees of self-consciousness, writes that forcing the doctors to continue to provide care for Mr. Golubchuk violates the doctors' rights. He argues that the family should be given time to find another hospital willing to care for Mr. Golubchuk, and if they cannot, then the family should accept his death.

Over the forceful objections of the Canadian Medical Association, a Winnipeg judge has issued a temporary injunction forbidding Grace Hospital from euthanizing Mr. Golubchuck. The doctors point to their own ethical standards against providing what they believe to be "futile" treatment, and claim that end-of-life decisions should be made by physicians, who have the patient's best interests at heart. Supporters of the family reply that doctors should not have the authority to over-ride a family's religious beliefs, liken the proposed euthanasia to Nazi tactics, and point to a recent case in Calgary, where a man believed by physicians to be irreversibly brain-damaged made an unexpected recovery.

The debate in Canada, which has been reported in international newspapers, does not yet appear to have dealt with the fact that the "physician rights vs. family rights" conflict is exacerbated by Canada's rigidly socialized system of health care. Unlike, for example, in the U.K. or Ireland, it is extremely difficult (although, thanks to a 2005 Supreme Court ruling, technically legal) for physicians to operate outside the government-run health care system. In a non-coercive system of health care, families could use their own money, or private insurance to pay for health care. Privately-funded hospitals could operate under the standards of their sponsors, such as religious organizations. A Catholic hospital could accept for Mr. Golubchuk as a patient (and provide him with medical care pro bono, if the hospital so chose), and keep him alive pursuant to Catholic beliefs about the sanctity of human life. Conversely, physicians who wanted to practice euthanasia could operate at hospitals which allowed the practice, and patients and families who accepted such practices could choose such hospitals.

There are many pro/con arguments about fully socialized vs. partially-socialized vs. non-coercive systems of health care. It does seem that one advantage of systems with less coercion is not forcing doctors or families to violate their ethical beliefs, or forcing health-care decisions into courts. In any case, it is fortunate for Mr. Golubchuk's family that Canada still has an independent judiciary.

48 Comments

Referendum C revenue will be $10 billion. Insatiable spenders say "Not enough."

Dec. 26, 2007

An editorial in today's Pueblo Chieftain reminds us that when referendum C was first promoted, the advocates claimed that it would raise $3 billion. Later, they raised the estimate to $3.75 billion. As the Independence Institute pointed out at the time, the 3.75B was implausible, because revenues from the oil and gas severance tax were soaring. Now, it turns out that ref C will raise an extra 10 billion dollars in taxes. Although the ref C advocates dishonestly described ref C as "temporary" "five-year" "time-out" from the Taxpayers Bill of Rights, the effect of ref C will be a permanent increase in state government taxing and spending levels allowed under the state Constitution. And yet, $10 billion extra dollars, over five years, plus billions and billions more in perpetuity, is not enough for the tax consumer lobby, which is gearing up to push another tax increase on the 2008 ballot.


[David Kopel, December 3, 2007 at 2:39pm] Trackbacks

Bush administration vs. Santa Claus

Perhaps the first administration in American history to criticize Santa. I wonder what part of the Constitution gives the federal government authority over all this? It's true that Santa's activities are clearly interstate and international. And these days, giving away presents might be considered "commerce," or at least something which greatly affects interstate commerce. Will the candidates for 2008 promise that their administration will leave Santa alone? Will Huckabee order Santa to be held captive in a fat farm (or, as they call it these days "a health spa") for his own good?

More here, from the Center for Consumer Freedom. 22 Comments


[David Kopel, December 3, 2007 at 11:46am] Trackbacks

Podcast on Gun Issues

A couple months ago, I was interviewed for the Gun Rights Advocates Podcast by host Mark Vanderberg. We talked about the implications and background of the D.C. handgun ban case, the politics of the gun issue, the role of activists, and new research about gun bans in Africa. The 36-minute interview is here. It begins with about 5-6 minutes of discussion by the host.

1 Comments
[David Kopel, November 29, 2007 at 1:19am] Trackbacks

UNRWA and Palestinian Suffering

November 29 is the United Nations' "International Day of Solidarity with the Palestinian People." It occurs on the anniversary of the 1947 date that the United Nations voted to partition the British Mandate of Palestine between Jews and Arabs. Many Palestinians and other Arabs rejected the UN partition, and started a war to exterminate the infant state of Israel a few months later. So by choosing November 29 as Palestinian day, the United Nations is in effect rewarding the aggressors who refused to comply with the UN plan. A much better date for the United Nations to acknowledge the suffering of the Palestinian people would be December 8, the anniversary of the 1949 creation of the organization that, for over half a century, has done more than anyone to immiserate the Palestinian people. That organization is UNRWA, the United Nations Relief and Works Agency for Palestine Refugees in the Near East.

That there is 21st-century refugee problem from a war that ended in 1949 is primarily because of UNRWA's decision to maximize Palestinian suffering for political advantage.
 

Established in December 1949, UNRWA began operations the next May. The UN Agency's job was to help settle the Palestinians who had left Israel because of the 1948-49 war. According to General Assembly resolution 302(IV), UNRWA's mandate was that "constructive measures should be undertaken at an early date with a view to the termination of international assistance for relief."

Over half a century later, UNRWA's annual budget is nearly half a billion dollars, including nearly $150 million from US taxpayers. As UNRWA's website explains, "In the absence of a solution to the Palestine refugee problem, the General Assembly has repeatedly renewed UNRWA's mandate." Stated another way, UNRWA's bureaucratic existence depends on making sure that the Palestinian refugee problem is not solved, and that "international assistance for relief" is not terminated at an "early date," or ever.

In 1950, the United Nations created the United Nations High Commissioner for Refugees (UNHCR), which began work in 1951. UNHCR tries to help refugees all over the world. It has worked on behalf of refugees in more than a hundred nations. UNHCR, which whose work is governed by the Convention Relating to the Status of Refugees, has helped more than 25 million refugees begin new lives.

In terms of organizational behavior, UNHCR has no incentive to try to obstruct the solution of any particular refugee problem. To the contrary, UNHCR can work to solve one problem, secure (bureaucratically) in the knowledge that new problems with other refugees will occur soon enough.

But in 1949, there was no UNHCR, so UNRWA was created solely to deal with the Palestinians. UNRWA is the only UN entity dedicated solely to serving a single ethnic group.

The creation of UNRWA turned out to be a catastrophe, particularly for the Palestinians, and also for the Israelis. Because the suffering of Palestinians has been used so effectively by terrorists to build support for attacks on the United States, Americans are also victims of UNRWA. America's naive good intentions in providing billions for UNRWA, while Arab governments contribute only a pittance, has obviously not bought America good will in the Middle East.

In retrospect, it is clear that once the UNHCR was created, the UN should have merged UNRWA into UNHCR. Then UNHCR could have aided the Palestinian refugees the same way that it has aided refugees in so many other countries--by helping them find new, permanent homes, so they could begin building new lives.

The Origins of the Refugee Problem

Wars often produce refugees. People who choose to start a war must accept responsibility for the creation of refugees of a result of the war.

From the end of World War I until 1948, "Palestine" (a name invented by Roman imperialists) was governed by the United Kingdom, as the result of a mandate from the League of Nations. Formerly part of the Ottoman Empire, Palestine (consisting of the modern nations of Jordan and Israel) was acquired by the UK as part of the spoils of World War One.

The reason that the League of Nations awarded Palestine to the UK was the 1917 Balfour Declaration, which promised to create a Jewish homeland there. The Declaration was part of a British effort to win Jewish support during the war.

But the British government broke its promise and failed to carry out the League of Nations mandate. Even after World War II and the Holocaust, Britain refused to create a Jewish homeland. The exasperated Jewish population's war of national independence finally led to Britain announcing in 1947 that it would abandon its mandate in Palestine in 1948. In late 1947, the United Nations announced a partition of Palestine: over 80% would be given to the new nation of Jordan, whose population was (and still is) majority-Palestinian. The new Jewish state would be given only territory which was already owned by Jews, or which was Crown property (owned by Great Britain).

On the day in May 1948 that Israel declared its independence, the new state was granted diplomatic recognition by American President Harry Truman. The same day, five Arab states, joined by many Palestinians, launched a war of extermination.

The war lasted from 1948 to 1949, when the Arabs gave up trying to destroy the Jews immediately, and accepted an armistice, although they did not renounce their state of war.

During the Arab war of aggression, several hundred thousand Arabs left Israel. Some left because they listened to the Arab propaganda urging Palestinians to get out of the way of the Arab armies. Some left without prompting because they just wanted to get away from the fighting. Some were pushed out because they were part of Palestinian villages that were fighting to eliminate the Jews.

Many Arabs, however, chose to stay in Israel, and today they constitute one-sixth of the Israeli population. For over half a century they have enjoyed the rights denied almost everywhere in the Arab world: complete freedom of religion, freedom of speech, the right to vote, the right to be elected to government (as many Israeli Arabs have been), the right to due process of law under a fair judicial system, and many other fundamental human rights. The nation with by far the best record in the Middle East for protecting the right of its Arab citizens is Israel.

During war, Israel urged the Arabs to stay, and after the war Israel welcomed back a hundred thousand who did return.

At about the same time--from 1947 to 1950--over three-quarters of a million Jews were forced out of Islamic nations where they had lived for many centuries. Intensified persecution in Iraq, Yemen, Morocco, Syria, and other Islamic countries made life intolerable. The United Nations did nothing for the Jewish refugees.

Most of the Jewish refugees went to Israel, where they were welcomed, and the new government worked hard to integrate them into society. Israel has always accepted Jewish refugees from anywhere, and today Israel is one of the most successful multi-racial and multi-ethnic societies in the world.

The Palestinian Arab refugees did not receive similar treatment from their Arab brethren. Except for Jordan, none of the Arab countries would grant them citizenship. Instead, the Arab governments decided to make them permanent refugees. By preventing them from resettling, the Arab dictatorships could create a human rights problem which could be used to distract the subjects of the Arab dictatorships from the massive human rights abuses of those dictatorships.

As Ralph Galloway, a disillusioned former director of UNRWA observed in 1958: "The Arab states do not want to solve the refugee problem. They want to keep it as an open sore…and as a weapon against Israel. Arab leaders don't give a damn whether the refugees live or die." (Terrence Prittie, "Middle East Refugees," in Michael Curtis et al., eds., The Palestinians: People, History, Politics(Piscataway, N.J.: Transaction Books: 1975), p.71.)

Today, many of the children, grandchildren, and great-grandchildren of those Palestinians who left Israel in 1948 still live in refugee camps. They are the only refugee population in the world for whom the United Nations has actively prevented resettlement.

UNRWA's Refugee-Maximizing Rules

Because of pressure from Arab countries, UNRWA was, from its very inception, given almost unlimited autonomy. It sends one report per year to the General Assembly, and is subject to essentially no checks or balances on its operations. There are no outside audits; just an audit performed by the notoriously corrupt UN itself.

UNRWA has used its autonomy in the manner favored by its prime UN sponsors--the Arab bloc--to ensure that as many people as possible are classified as "Palestinian refugees."

For all refugees in the world--except the Palestinians whom UNRWA "serves"--the key international law is the 1951 United Nations Convention Relating to the Status of Refugees. The UN's High Commissioner for Refugees follows the standards of the Refugee Convention.

The UNCHR defines its objective as finding solutions, which often means working to ensure that "everyone can exercise the right to seek asylum and find safe refuge in another state." The goal of UNHCR, in accordance with the 1951 Convention, is to help people stop being refugees.

UNRWA does just the opposite. For example, the 1951 Refugee Convention defines a "refugee" as a person who "is outside his/her country of nationality or habitual residence; has well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."

The UNCHR definition means that, at the least, a refugee must be someone who has left his "country of nationality or habitual residence." If an American businessman lived in China for three years, and then the businessman tried to help some countries which were invading China, and then the American businessman fled China after China won the war, the American businessman would not be "refugee" according to UNCHR's common-sense definition.

Likewise, if a Jewish or Ukrainian family fled from Communist persecution in the Soviet Union in 1948, and came to the United States, then the American children, grand-children, and great-grand-children of the Soviet refugees would, obviously, not be refugees according to UNCHR. The children, grand-children, and great-grand-children, having been born and spent all their lives in the United States, could hardly be "habitual" residents of Russia.

UNCHR's common-sense definition of "refugee" is designed to identify true refugees, while preventing other people from making false claims about refugee status for political purposes.

UNRWA works in exactly the opposite way, awarding refugee status to people who are not real refugees.

Although Jews have lived in Israel continuously for over three thousand years, a surge of Jewish immigration to Israel began in the late 19th century, when the area was ruled by the Ottoman Empire. Immigration continued during the period of British rule, and the formerly torpid economy of the region began to blossom. The Zionist immigrants drained swamps, reclaimed wasteland, started small businesses, and made the desert bloom. The economic growth resulting from Jewish immigration attracted many Arabs, who sought to participate in the economic opportunities that had been created by Zionist initiative.

Many of the Arabs who left Israel because of the 1948-49 war had not been there very long. So UNRWA fabricated the definition that refugees were "persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict." By UNRWA's definition, the American businessman who left China after living there three years (or an illegal alien in the United States who got deported after living in the U.S. for more than two years) would be a refugee.

Similarly, UNRWA pretends that any descendant of a refugee is a refugee. By UNRWA's theory, if your ancestors fled from someplace 150 years ago, then you are still a refugee. In fact, the descendants of many of the Arabs who chose to leave Israel after 1948 have permanently settled in other countries and become citizens. The largest number settled in Jordan, the only Arab country to grant them citizenship. Many others moved to Europe. Yet UNRWA still issues refugee cards to all of these people, and their children, and their children's children.

In contrast, 1951 Convention does not include any descendants of refugees--let along the third or fourth generation of descendants--as "refugees."

Similarly, the 1951 Convention specifies that if a refugee acquires a new nationality and the protection of a new government (e.g., a refugee from Russia becomes a U.S. citizen), she is no longer a refugee. In contrast, UNRWA claims that a "Palestinian refugee" who becomes a citizen of the United States, France, Jordan, or any other nation is still a "Palestinian refugee" forever--and so are his children, his grandchildren, and his great-grandchildren.

UNRWA has been so eager to increase the number of refugees that it can claim to serve that it has given out enormous numbers of refugee cards to people whom it knew were not refugees. (And then, of course, all the descendants of the person with the original refugee card are also counted as refugees.) UNRWA admits that it gave out at least a hundred thousand improper refugee cards (entitling card-holders to UN welfare) in its early days, although the actual number of improperly-issued cards may be much larger.

So today, you may hear that there are over four million "Palestinian refugees," a figure that has grown from the 914,000 refugees that UNRWA claimed in 1950. Most of them are not refugees, but are descendants of people whom UNRWA labeled as "refugee" many years ago.

UNRWA's Abuse of Palestinians

Of the "refugees," about two-thirds have found their own housing, while one-third live in one of the 59 housing facilities that UNRWA operates in five countries. Some of the housing is UNRWA-owned row houses in cities that have grown around or near the camps. Other housing is more primitive. Rarely are the housing facilities well-maintained. Their Palestinian residents do not own them; they belong to UNRWA, so no-one in a housing unit has a financial incentive to conduct preventive maintenance, let alone invest in improvements.

Moreover, UNRWA insists on the fiction that the housing units--which have been occupied from 1950 until the present--are merely "temporary" because the residents will be going "home" to Israel. So UNRWA too performs little upkeep or improvement, lest UNRWA be seen as deviating from its official pretense that the housing is temporary.

When Israeli troops entered Gaza in 1967, they were appalled at the squalid conditions in the UNRWA camps there. The Egyptians had forbidden residents to work outside the camps, and had not allowed electricity or running water inside the camps. Israel attempted to ameliorate conditions there, including medical care, and to replace shacks with small houses, but UNRWA blocked the improvements. UNRWA is often reluctant to allow conditions in the camps to improve, because such improvements might diminish the desire of "refugees" to "return."

In 1985, Israel offered to give 1,300 permanent homes near Nablus to refugees. Israel did not even ask the people who would receive the charity housing renounce their so-called "right of return." But the UN blocked the housing program, and claimed that "measures to resettle Palestine refugees in the West Bank away from the homes and property from which they were displaced constitute a violation of their inalienable right of return."

Similarly, after the Israelis withdrew from Gaza in 2005, the United Arab Emirates donated one hundred million dollars to the Palestinian Authority to build a new city in Gaza, for the benefit of people who have been harmed by the Arab-Israel conflict. Yet the PA refused to allow the refugees to live in this new city.

The Phony "Right of Return"

Under international law, there is no such thing as a right of return. If your ancestors left France, or Russia, or anywhere else (regardless of whether they were forced out, or they just wanted to live somewhere else), then you have no right of return to France or Russia. Nor do your grandchildren.

Nevertheless, UNRWA tells the "refugees" that they have a "right of return"" to Israel--that the grandchild of someone who moved to Tel Aviv to work as a janitor from 1946 to 1948 has a right to live in Israel, and to take back whatever real property their ancestor abandoned when he left Israel.

The pretext for the claim of an "inalienable right of return," is General Assembly Resolution 194, which says, "the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date..."

In fact, Israel did allow one hundred thousand Arabs who had fled the fighting to return to Israel.

The General Assembly Resolution itself indicates that the only refugees who should be allowed (not who have a "right") to return are those who wish to "live at peace with their neighbours." It is the Palestinians who have the obligation to prove--against a record of many decades of aggression--that they have changed, and are now willing to live in peace with their Jewish neighbors.

In 1974, at the height of the period when the UN was dominated by the Soviets and anti-Semites, General Assembly Resolution 3236 declared "the inalienable right of return" of the Palestinians, and formalized the UN's relationship with what was then the world's foremost terrorist organization, the PLO.

Yet in international law, General Assembly resolutions have no legal force. In contrast to Security Council resolutions, GA resolutions express nothing more than the sense of the General Assembly, and cannot, by themselves, create legal rights.

The notion of a right of return is preposterous not only as a matter of international law, but as a matter of common sense. Israel was established to be the Jewish homeland. To allow immigration by over four million people--the vast majority of whom have never lived in Israel, and whose ancestors rejected the opportunity for Israeli citizenship--would destroy Israel as a Jewish state. Even worse, more than half a century of anti-Israel propaganda education at UNRWA-run schools have turned many of the four million "refugees" into anti-Semites and supporters of terrorism.

UNRWA schools follow the curriculum in the host country, so UNRWA schools in Egypt and Syria are now, and always been, schools for indoctrination in extreme anti-semitism. In 1995, the Palestinian Authority was granted authority over UNRWA schools in the West Bank and Gaza, pursuant to the Oslo Accords. According to the Oslo treaty between Israel and the Palestine Liberation Organization, both sides were required to carefully revise their educational curricula, so that schools did not foment hatred. Israel complied with the Oslo Accords, while Arafat and his PLO did not. So beginning in 1995, UNRWA schools in the West Bank and Gaza adopted the hate curriculum developed by the Palestinian Authority.

The Committee for Monitoring the Impact of Peace (CMIP) analyzed the UNRWA/PA curriculum, based on general guidelines from the United Nations Educational, Cultural, and Scientific Organization (UNESCO). The analysis revealed massive lies about Middle-East history and the present, all of them geared towards fomenting anti-Semitism and encouraging terrorism. The schools' maps do not even acknowledge the existence of Israel. Among the features of the PA hate education are: covering up the extensive historical and archeological record of Jewish habitation of Israel and nearby areas from ancient times until the present; using the Koran to incite hatred to Jews; refusing to acknowledge the existence of Israel; presenting Zionism as a western colonial movement (even though it was resisted by Western colonial powers); ignoring the existence of Jewish holy sites; depicting Jews as uniformly evil; propagandizing for the destruction of Israel; blaming the status of Palestinian refugees solely on Israel (with no hint of responsibility for the Palestinians and other Arabs who started the war against Israel); and extolling jihad and terrorism.

A study of fourth and ninth grade textbooks by the Israel/Palestine Centre for Research and Information (the only joint Palestinian-Israeli public policy think-tank) also found extensive historical misrepresentation, maps which refused to acknowledge Israel's existence, and the promotion of jihad. Although the textbooks did promote "tolerance" in the abstract, the concept was not directly applied towards modern-day tolerance of non-Muslims.

As a practical matter, no-one but the deluded victims of UNRWA and terrorist propaganda actually expects that Israel would honor the fictive right of return. But by making sure that as many Palestinians as possible remain refugees incensed about the continuing denial of their "right of return," UNRWA fulfills the objective of Arab dictatorships in making sure that the Arab-Israeli conflict is never resolved.

As with so much that the UN does, the "Palestinian right of return" is presented to the world as a high moral principle--but it is a principle that applies only when it can be used against Israel. Consider the many Palestinian guest workers who lived in Kuwait before Saddam Hussein invaded in 1990. Many of these guest workers had lived in Kuwait for much longer than two years (the period that UNRWA claims entitles a Palestinian and every one of his descendants to the right to "return" to Israel).

When Saddam invaded, many of the Palestinians in Kuwait supported him, as did the Yassir Arafat's Palestine Liberation Organization. After US-led forces drove Saddam out of Iraq, the Kuwaitis promptly expelled the entire Palestinian population.

If Kuwait were treated like Israel, the expelled Palestinians would be housed in special camps run by a UN agency created just for their benefit. The United Nations would incessantly denounce Kuwait for violating the "inalienable Palestinian right of return." And while insisting on the Palestinians' right to return to Kuwait, the UN allow its schools to be used to teach children that Palestinians have a historical right to rule Kuwait, and to claim it by jihad if necessary.

In January 2000, Israel's government, under severe pressure from President Clinton, accepted his demands, and announced it would grant Yassir Arafat's Palestinian Authority a state of its own in the West Bank and Gaza. Faced with the granting of so many demands, Arafat was able to find a pretext for continued war only by insisting that neither he nor anyone else would ever make peace unless Israel also granted the "right to return"--thereby destroying any hope for peace. UNRWA's mission--as perverted by the Arab bloc--had succeeded.

The Annapolis Conference aims to bring peace to the Middle East in 2008. A helpful contribution by the United Nations would be to abolish UNRWA, which has long been an obstacle to a just resolution of the problems of the Palestinian people.

 67 Comments
[David Kopel, November 23, 2007 at 1:40pm] Trackbacks

D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?

Prof. Nelson Lund, of George Mason, is one of the leading conservative legal scholars writing in support of a meaningful Second Amendment. Unlike, for example, most of the VC writers, Lund's legal philosophy has hardly any libertarian influence. (For example, Lund argues that Pierce v. Society of Sisters was wrongly decided, as are all its progeny, the "substantive due process" cases.) Lund's latest article on the Second Amendment, will appear soon in a symposium issue of George Mason University Civil Rights Law Journal. Here's part of the abstract of the thought-provoking article, which addresses an argument that, as the cert. petitions have already shown, will be a key part of the Fenty administration's attempt to preserve the D.C. handgun ban:

One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?

This superficially plausible defense of the District's statute was not adequately refuted in Judge Silberman's opinion for the D.C. Circuit. This article demonstrates, largely but not exclusively on the basis of a careful linguistic analysis of the Second Amendment, that such a defense of the District's statute is untenable.

69 Comments>


[David Kopel, November 20, 2007 at 2:21pm] Trackbacks

Some background on the D.C. handgun and self-defense bans:

1. Since the enactment of the 1976 D.C. ban on handguns and on home self-defense with any gun, handgun bans have been almost universally rejected by the American body politic. Indeed, 45 states now have laws to prevent the local enactment of laws like the D.C. ban. (Court, capital and handgun. Ft. Worth Star-Telegram.) Accordingly, under a "living Constitution" theory, the case against bans on handguns and on self-defense with firearms is very strong.

2. The D.C. ban is manifestation of the bigotry and incompetence which pervade much of the D.C. municipal government. (A Capital Crime. America's 1st Freedom.)

3. The case for handgun prohibition is very weak, once its premises are carefully examined. (Peril or Protection? The Risks and Benefits of Handgun Prohibition. 12 St. Louis University Public Law Review 344 (1993).)

4. Although the Court has not issued a major Second Amendment decision since Miller in 1939, the Supreme Court has mentioned or discussed the Second Amendment in thirty-five other cases, almost always in a context which requires an individual rights interpretation. (The Supreme Court's Thirty-five Other Gun Cases. 18 St. Louis University Public Law Review 99 (1999).)

5. The interpretation of state constitution right-to-arms clauses strongly points to an individual rights interpretation of the Second Amendment. Over the last four decades, voters in many states have added or strengthened state constitution right to arms clauses, always doing so by overwhelming majorities. These state actions affirm the vitality and importance of the right to arms under a "living Constitution" theory. (What State Constitutions Teach about the Second Amendment, 29 Northern Kentucky Law Review 845 (2002). Cited in Mosby v. Devine, 851 A.2d 1031, 1040 (R.I. 2004), majority opinion by Chief Justice Williams; State v. Hamdan, 264 Wis.2d 433, 467 n. 23, 665 N.W.2d 785, 802 n. 23 (Wisc. 2003), majority opinion by Justice David T. Prosser.)

6. The claim that a gun in the home of an ordinary person is a terrible danger which clearly outweighs the protective value of the gun is empirically false. (The Fallacy of '43 to 1'. National Review Online.)

7. The Brady Campaign claims that it does not support handgun prohibition, and that it does support self-defense by law-abiding gun-owners. Yet the Brady Campaign has fought vigorously in Congress against attempts to reform the D.C. handgun and self-defense bans, has fought in the instant case to preserve the bans, and fought (under one of its former names, the National Council to Control Handguns) to preserve the handgun and self-defense bans in D.C. Superior Court and the D.C. Court of Appeals in the 1976-78 case of McIntosh v. Washington.

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[David Kopel, November 17, 2007 at 6:26pm] Trackbacks

Do Newspaper Endorsements Matter?

I examine the question in my latest media column for the Rocky Mountain News. The column also looks at how the newspapers conduct their pre-endorsement research.

13 Comments
[David Kopel, November 12, 2007 at 5:57pm] Trackbacks

Evolving Christian attitudes towards personal and national self-defense

Veterans Day seemed like an especially apt day to publish this Working Paper, for which comments are gratefully solicited. Summary:

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence.

While the article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War One turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War Two and the early Cold War ended the pacifist interlude for all but a few radical pacifists.

Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti-Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years.

Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.

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[David Kopel, November 9, 2007 at 2:08am] Trackbacks

Modern Christian Pacifist Philosophy:

This Working Paper, for which comments are solicited, examines the strengths and weaknesses of some leading Christian pacifist religious philosophers. The Article suggests that some intellectual arguments for pacifism are logically solid (once certain premises are granted), while others have serious flaws. The article discusses five influential philosophical advocates of non-violence Thomas Merton, Stanley Hauerwas, Leo Tolstoy, Tony Campolo, and John Howard Yoder. In addition, the Article examines three real-world cases where the practice of non-violence was put into action: the Danish rescue of the Jews during WW II, the American Civil Rights movement in the South in the 1960s, and the invasion of the Chatham Islands--the home of the pacifist Moriori tribes.

The Working Paper is argues that the Tolstoy, Hauerwas, and Campolo arguments for pacifism are seriously flawed, whereas the arguments of Merton and Yoder are much more solid.58 Comments


[David Kopel, November 7, 2007 at 1:09am] Trackbacks

Oprah banishes "The Education of Little Tree"

Oprah Winfrey has removed the book "The Education of Little Tree" from her book website, which is one of the most influential book-selling sites in the world. "The Education of Little Tree," published in 1976, purports to be the autobiography of an Indian child who is raised by his grandparents. As it turns out, the book was written by Asa Carter, a pro-segregation racist who wrote speeches for George Wallace. Carter later wrote "The Rebel Outlaw Josey Wales," a novel which became a successful movie.

My father, Jerry Kopel, met Asa Carter when they were first year pre-journalism students at the University of Colorado in 1948. A 1998 column by my dad looks at the paradox of a man who was a virulent racist, yet who was also deeply proud of his real-life Indian grandfather. Did writing "Little Tree" provide Carter with some redemption for the terrible things that he did in the 1950s and 1960s? My father hopes so. 0 Comments


[David Kopel, November 5, 2007 at 7:49pm] Trackbacks

Happy Guy Fawkes Day!

Guy Fawkes, Guy Fawkes,
'twas his intent
to blow up the King and the Parliament.
Three score barrels of powder below,
Poor old England to overthrow:
By God's providence he was catch'd
With a dark lantern and a burning match.

Holloa boys, holloa boys, make the bells ring.
Holloa boys, holloa boys, God save the King!
Hip hip hoorah!
 

My thoughts on the day, from a 2001 NRO column, are here. Actually, my NRO article is less about the Guy Fawkes case itself than about A Treatise of Equivocation and juror nullification.

Some background on English Catholics' legitimate resistance to government efforts to stamp out their religion are in this article, on Nicholas Owen, the great builder of hiding places for priests.

To state the obvious, the Gunpowder Plot was counterproductive to efforts to protect the religious freedom of English Catholics. 32 Comments


[David Kopel, November 4, 2007 at 7:27pm] Trackbacks

Vallodid debate bleg

In 1550, Spain's King Charles V, after hearing arguments in the Vallodid debate, decided that Indians could be enslaved and exploited with few humanitarian limitations.

Could a kind commenter please supply me with a cite for the above statement? I know there's stuff about Vallodid on the web, but I need a published book or scholarly journal article, for law review citation purposes. Thank you. 12 Comments


[David Kopel, November 3, 2007 at 4:11pm] Trackbacks

Fred Thompson vs. The UN's anti-self-defense campaign

Earlier this week, Sen. Fred Thompson wrote to Field & Stream magazine, criticizing the UN's campaign against the human right of self-defense. The Thompson campaign touted the letter on its website, and the letter got a favorable reception among many pro-Second Amendment bloggers.

The Thompson letter, including its quotation of the great Dutch philosopher of international law, Hugo Grotius, appears to have used as a source the Kopel/Gallant/Eisen article "The Human Right of Self-Defense," which is forthcoming in volume 22 of the BYU Journal of Public Law. (We're in the middle of the cite-check right now, so the draft on my website is not the final version. And kudos to the BYU staff for its hard work on a monstrous cite-check with hundreds of sources, many of them not in the collection of an ordinary law library.)

Sen. Thompson's letter prompted criticism from Kevin Drum of the Washington Monthly and Stephen Benen, both of whom relied on a refutation written by UN Dispatch, a weblog funded by the UN Foundation.

Today, the Knoxville News reports that it was UN Dispatch that got the facts wrong. The Special Rapporteur's Report which Thompson criticized (and which was adopted and endorsed by a submcommission of the UN Human Rights Council) quite explicitly says that personal self-defense is not a human right.

It's been a long time since a major presidential candidate quoted Grotius, and my view is the more Grotius in America's public debates, the better. I hope Pufendorf starts to get some attention too.

It's rather telling that the UN's American defenders fail to directly address an indisputable fact: U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense, and the subcommission, pursuant to the report, has declared that all national governments are required by international human rights law to implement various gun control provisions--provisions which, by the UN's standards, make even the gun control laws of New York City and Washington, DC, into violations of international law because they are insufficiently stringent. (See page 14 of the draft BYU article.) 92 Comments


[David Kopel, October 16, 2007 at 3:55pm] Trackbacks

Automobile CO2 reduction bleg

As reported in Colorado media, some mayors have endorsed a climate change plan whose recommendations include: "strict CO2 emissions-reducing standards for cars, a move which would boost new car prices by about $900 but save $1.88 billion in reduced fuel costs, according to the Rocky Mountain Climate Organization." I was not able to find information about the automobile emissions plan on the RMCO's website, but perhaps I didn't look in the right place. In any case, do any readers know where the above data come from? For what period of time (annual?) and group of people (U.S.? Colorado?) the 1.88 billion savings figure is calculated?

I eagerly await information in the comments, but please don't use the comments to argue the pro/con over the general issue of global warming.

39 Comments

[David Kopel, October 16, 2007 at 1:51pm] Trackbacks

Armenians and Guns:

In today's National Review Online, Paul Gallant, Joanne Eisen, and I examine one aspect of the 1915 Armenian genocide. We show that the Ottoman tried to disarm the Armenians before the genocides began. And we provide examples of how, to the extent that the Armenians retained their arms, thousands of innocent lives were saved.

105 Comments
[David Kopel, October 14, 2007 at 1:08am] Trackbacks

The Templars and other Monastic Military Orders

The Parchment of Chinon and the massive forthcoming book Processus Contra Templarios--Papal Inquiry into the Trial of the Templars prove that the Knights Templar were known to be innocent of the charges for which they were persecuted and destroyed.

Nearly seven centuries after the Knights Templar were eliminated, they remain the subject of a vast body of speculation about modern conspiracies and secrets. Here's a short introduction to their real history, and that of their fellow warrior monks.

In 1119, Hugh de Payns created a group of fighting monks who patrolled the roads outside Jerusalem, and defended pilgrims from highway robbers. The impetus for the formation of the group may have been a massacre of 300 pilgrims near Jerusalem, just before Easter, by the coalition of Muslim forces known as the Saracens.

The knights' headquarters was the Temple Mount in Jerusalem (site of the former Second Jewish Temple), where the Muslims had built the al-Aqsa Mosque. Hence, the group took the name of the Order of the Poor Knights of the Temple of Solomon--or "Templars" for short. The Templars may have been created in imitation of similar orders in the Moslem world.

St. Bernard of Clairvaux, the leader of the Cistercian Order, strongly supported the Templars. His Liber Ad Milites Templi De Laude Novae Militia extolled the knights, and made a word play on the contrast between malitia (evil) and militia. He wrote, "a new kind of militia is reported to have arisen in the world..." The killing of evildoers was "not homicide but malicide." Bernard argued that killing non-Christians was permissible as a last resort if there was no other way to stop them from oppressing Christians.

The Templars also received enthusiastic support from the Papacy. Pope Innocent II in 1139 issued the bull Omne Datum Optimum(Every Good Gift) making the Templars responsible only to the Pope directly. In 1144, Pope Celestine II published Milites Templi to encourage monetary donations to the Templars. The next year, Pope Eugenius III issued Militia Dei to give the Templars the right to own churches and cemeteries, and to collect the associated fees.

While vernacular translations of the Bible were disfavored, the Templars were given vernacular texts of Joshua, Judges, Samuel, and Maccabees, so they could learn the military strategy and tactics of the Holy Land.

Templar castles were used as secure store-houses for wealth. Because the Templars had a powerful and orderly international organization, the Templars played a role in the creation of Europe's early system of banks.

The Templars grew extremely wealthy. They were subject to no-one's control, and in their wars in the Holy Land, they made their own decisions about concluding truces or starting wars, without deferring to the wishes of the local Christian kings. With good cause, they were widely regarded as arrogant.

The unpopularity of the Templars provided an opportunity for France's King Philip II (known as "the Fair" because of his good looks, not his judgment) to destroy them in order to seize their vast wealth. In 1306, Philip expelled all the Jews from France, and confiscated their assets. He then aimed at the Templars. Templars were arrested and tortured, and made to admit to various infamous crimes, such as sodomy, profaning Catholic ritual, and so on. The actual evidence against the Templars was slight, but Phillip was able to force the Pope to support his plot against the Templars, for the Papacy was under the control of France. Other monarchs, such as Edward in England, followed Philip's example, and helped themselves to Templar property.

The Knights Templar were abolished by the Pope in 1312. In essence, they were victims of forfeiture laws. The rule that the government can seize the property of a criminal proved irresistibly tempting for Philip the Fair and his brother kings. Indeed, forfeiture was sometimes a major revenue source for monarchs, and the Templar persecution was not the last time that innocent people were convicted on phony charges so that the government could enrich itself.

Next to the Templars, the most famous Catholic military order was the Sovereign Military and Hospitaller Order of St. John of Jerusalem, also known as the Knights Hospitaller. They built a hospital in Jerusalem, but also branched into military affairs, and fought in defense of the Crusader kingdoms. Like the Templars, they warred bravely, but failed to coordinate with other Christian forces. After being driven out of Asia, they headquartered in Cyprus, Rhodes, and Malta, ruling the latter island until being defeated by Napoleon in 1798. Today, they still operate hospitals and ambulances.

The warrior monks of Prussia were the avaricious and oppressive Teutonic Knights, who expanded the realm of Christianity to the north and east of Germany.

The Order of Our Lady of Bethlehem ran hospitals, and was also charged by Pope Pius II with defending the island of Lemnos from the Turks in 1459. (The Turks prevailed.) The Order of St. Stephen was founded in 1561, as a naval force, and participated in the great Christian naval victory at Lepanto.

In Spain, there were many orders of warrior monks. These included the Order of Alcántara, the Order of Calatrava, and the Order of Santiago. The Spanish Orders may have provided the decisive force which helped the Catholic monarchs push back Muslim rule in Iberia. Ironically, the original military orders had arisen as a result of the Crusades in the east, but the most significant long-term effect of the military orders was a victory, that would endure for centuries, against the Muslim invasion of the west.

The Order of Our Lady of Mercy for the Redemption of Captives (the Mercedarians) was founded in 1218 to rescue Christian slaves held by Muslims. Originally a military order, the Mercedarians became a mainly clerical order in the next century; the order still exists today.

Sources: Edward Burman, The Templars: Knights of God (Rochester, Vermont: Destiny Books, 1986); Roberta L. Harris, The World of the Bible(N.Y.: Thames & Hudson, 1995); Michael Walsh, Warriors of the Lord: The Military Orders of Christendom(Grand Rapids, Mich.: Wm B. Eerdmans, 2003).

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[David Kopel, October 12, 2007 at 4:27pm] Trackbacks

British High Court decision on "An Inconvenient Truth":

On Wednesday, a judge of the United Kingdom's High Court of Justice, Queen's Bench Division, issued a ruling in a challenge to the use of Al Gore's film "An Inconvenient Truth." The judge ruled that, under British education law, the film was "partisan" and could not be shown to students without presentation of different viewpoints. The decision listed nine major factual errors in the film. The judge noted that, as a result of the suit, the British education authorities have already agreed to address the factual errors, and to present other views. Thanks to the Heartland Institute, in Chicago, for its posting of the full text of the decision. (BTW, I will be speaking about the Microsoft case and its implications for future government control of the digital economy, at Heartland's Emerging Issues Forum on October 25.)

And kudos to Great Britain's "The New Party" for bringing the case. (Not that all of The New Party's ideas are good; they want property forfeiture laws which put the burden of proof of innocence on the property owner.)

87 Comments
David Kopel, October 10, 2007 at 5:31pm] Trackbacks

Medellin and the Second Amendment:

The Supreme Court's oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to impose highly restrictive gun controls.

The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin's lawyers is even broader, that a World Court ruling is sufficient in itself.

Now let's see how this could work in a gun control hypothetical:

1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she, unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds from being used to fund gun confiscation during/after a natural disaster or similar emergency, even when the confiscation had no legal basis, or was formally prohibited by state law.)

2. She can't get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3 support necessary for ratification of the new UN international gun control treaty. (Without U.S. Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade Treaty.)

3. The United States has ratified the International Covenant on Civil and Political Rights, along with a reservation stating that the Covenant is not self-executing.

4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has written a report for the United Nations Human Rights Council. The report has been adopted by the Human Rights Council's subcommission on the Promotion and Protection of Human Rights, which claims that the Report accurately describes existing mandatory international law.

5. Under the report's standards, U.S. gun control laws are in massive violation of the international law obligation (contained, inter alia, in the International Covenant) not to violate "the right to life." For example, most states do not require a periodically-renewed license for the possession of handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police, to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults), even when the person using deadly force does not believe that deadly force is necessary to save a life. Even New York City's gun laws are deficient, for they allow licensed owners of rifles and shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, self-defense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my forthcoming article in the BYU Journal of Public Law, "The Human Right of Self-Defense.")

6. In collusion with the Clinton administration, a foreign government brings suit in before the World Court. The suit might be premised on the dangers to the foreign government's nationals when they visit or work in the United States. The Clinton administration accepts the World Court's jurisdiction.

7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council.

8. President Clinton, exercising her foreign policy discretion, declares that all state governments must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of guns for self-defense.

9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming that the President cannot force them to obey a World Court ruling about a non-self-implementing treaty.

10. Based on the October 10 oral argument, it appears that there are currently some Justices on the court who think that the President can. By President Clinton's second term, there might be a majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton or another, who might agree.

What if some states refused to obey a direct order from the Supreme Court? Well, there are lots of ways to pressure the states, including withholding their appropriated federal funding for state and local criminal justice agencies. Would a Supreme Court that upheld President Clinton on the substantive issue be likely to declare it illegal for President Clinton to temporarily suspend the payment of money to states which are attempting to nullify a Supreme Court ruling?

There is an even simpler approach. Every firearms retailer holds a Federal Firearms License, and is subject to the regulatory control of the Bureau of Alcohol, Tobacco, Firearms and Explosives. No FFL may sell a gun to a customer without complying with the National Instant Check System, which is administered by the Department of Justice and FBI. President Clinton simply issues an order that no FFL may sell a gun, and NICS may not approve any transfers in any state which has not brought its laws into conformity with the World/Supreme Court rulings. Alternatively, President Clinton just orders administrative changes, so that the federal Form 4473 (which must be filled out by all retail gun buyers) states that it must be renewed every five years. A new line on the 4473 requires the buyer to make a multiple choice selection for one (and only one) purpose for which the gun will be used. Further, BATFE issues regulations under the federal Gun Control Act declaring that internationally-illegal uses of guns (e.g., against a rapist) constitute use of a gun "in a crime of violence", which is a federal crime under the Gun Control Act. President Clinton directs the US Attorneys to prosecute accordingly.

The federal statutes creating BATFE, requiring FFLs, and setting up NICS do not give the President any authority to issue such orders. But President Clinton could argue that she may issue such orders, based on her Article II foreign policy powers, in order to comply with the World and Supreme Court decisions. Moreover, the Senate ratification of the International Covenant implicitly gave her such powers, pursuant to the Supremacy Clause, to implement mandatory U.S. obligations arising from the Covenant.

Would U.S. courts, and, eventually, the Supreme Court, uphold President Clinton's actions regarding FFLs and NICS? It would be unrealistic to be confident that courts would not.

Of course my suggestions about how a U.S. President might proceed after point 10 are just guesses. What is clear, is that with the right President having the opportunity to make a few Supreme Court appointments, getting to point 10 would be quite easy. After that, U.S. history shows that when a determined U.S. President wants to make recalcitrant states obey a U.S. Supreme Court ruling, the President eventually wins, one way or another.

Related Posts (on one page):
  1. Medellin and the Second Amendment:
  2. Medellin v. Texas:
37 Comments
[David Kopel, October 10, 2007 at 1:06pm] Trackbacks

The UN Needs another Member

On today's Tech Central Station, Mike Krause and I argue for Taiwan's legal right to membership in the United Nations. We also strongly criticize Secretary General Ban Ki Moon for violating the UN Charter in his treatment of the Taiwan application, and thereby arrogating for himself a power that the Charter specifically reserves to the Security Council, and not to the Secretariat.

BTW, the TCS version of our article does not include the links which we had included. VC readers will have no trouble finding for themselves most of the documents we talk about (e.g., the Shanghai Communiqué, the Montevideo Convention, the UN Charter). But there are a few important exceptions. First, the Taiwan polling on self-determination is here. (The questions were not perfectly neutral in phrasing, but I think the general direction of the results is accurate.) The polling on whether the people of Taiwan consider themselves Chinese is here. The link for "As the delegations of several nations pointed out to the General Assembly in September..." is here, a summary of a U.N. General Assembly committee's discussion of a proposal by some members to urge the Security Council to consider Taiwan membership. And the fact that China, historically, only claimed sovereignty over all of Taiwan for a 17 year period in the 19th century is here, a VC post I wrote last year.

22 Comments
[David Kopel, October 9, 2007 at 12:31pm] Trackbacks

I found the Constitution-in-Exile Movement

"The people who have been looking for 'the Constitution-in-exile movement' can stop searching for the non-existent secret headquarters in The Federalist Society's offices. Instead, they can just drop in on a Ron Paul rally." Or so I wrote in Ron's Revolution, for this morning's National Review Online. Based on Paul's appearance at the Gun Rights Policy Conference last weekend, I've found out that Paul is running a much stronger campaign than I had previously realized.

BTW, as far as I can tell, the Fred Thompson campaign has not released any videos answering the questions which he solicited from the VC and other blogs about a month ago.

37 Comments
[David Kopel, October 6, 2007 at 6:50pm] Trackbacks

Media Coverage of Rachel Corrie:

My latest media analysis article for the Saturday Rocky Mountain News/Denver Post looks at coverage of the Denver opening of the play My Name is Rachel Corrie. BTW, although my article is critical of the coverage, I think that most of the time Denver Post theater critic John Moore does excellent work.

17 Comments
[David Kopel, October 4, 2007 at 4:16am] Trackbacks

Burma Gun Controls:

Recent events in Burma have led some people to wonder about kind of guns controls Burma has. Below is what I've found in a first round of research. Commentators are urged to supply additional information.

First, from the website of the Burma Lawyers Council, a pro-freedom organization based in Thailand:

A 1951 law bans possession of automatic weapons, grenades, and explosives with the intent to commit high treason. A rather narrowly-tailored law, at first glance.

However, the law states that the President can by decree add "any other arms or ammunition" to the banned list. And any person with a banned weapon is presumed guilty of intending to commit high treason, and required to prove his innocence:

Provided that, notwithstanding anything to the contrary contained in any other law for the time being in force, it shall be presumed, until the contrary is proved, in a prosecution under this section, that the person found going armed with; or in possession of, or having under his control any of the arms, ammunition or military stores specified herein, had the intention of committing the offence of High Treason.
Sections 96-106 of the Penal Code recognize the "right of private defence" of person and property, including the right to use deadly force against certain felonies, including a night-time home invasion.

The Online Burma/Myanmar Library has an excellent search engine, and many articles. There are a lot of dead links to the full text articles, but you can usually find the article via Yahoo, once you know the exact title. Here are some interesting articles I found:

The May 17, 2006, issue of The New Light of Myanmar(a dictatorship propaganda organ) has an article (starts on page 16, then jumps to a previous page) expressing pleasure that "16 families exchange arms for peace."

A December 9, 2006 article in Kaowao News no. 121, the "Newsletter for social justice and freedom in Burma" reports:

Mongrass roots communities have urged the ceasefire group, New Mon State Party not to lay down their arms amid pressure given by the military regime. Public opinions have been heard during the party's public campaign in Ye, Yepyu, and Three Pagodas Pass Townships under its administration this week.

"We (Mon public) cannot give up our arms to them. We have sacrificed for so many years. The SPDC will surely take away our rights if the NMSP gives up their arms," said a villager at the public gathering on December 4, 2006 where NMSP leaders Nai Hongsar, Ong Htow Mon and Captain Jalon Htow talked to over 120 attendees at Palai Japan village, a sparsely populated area near Three Pagodas Pass Thai Burma border town.

There are a number of other articles to similar effect, of the government press praising disarmament, or ethnic resistance advocates warning against it.
An August 2005 article from The Irrawaddy, "How World War II Shaped Burma's Future," explains:
In the beginning, Aung San and his Burman nationalists had sided with the Japanese. His Burma Independence Army was armed and trained by the Japanese, while the Allied powers armed and equipped hill peoples such as the Karen and Kachin to fight the occupiers. Centuries of mistrust between the Burmans and the hill peoples resurfaced, and those wounds have not yet been healed. Even today, many Karen talk with bitterness about atrocities carried out against them by the BIA during the Japanese occupation, and the Kachin are proud to point out that they already had celebrated their victory in Myitkyina by the time the Burman nationalists in March 1945 turned their guns against the Japanese.

The arming of the hill peoples, and vast quantities of weapons left behind by the Japanese, meant that Burma's ethnic conflicts from the very beginning turned violent. The hill peoples had the means to form their own militias and armies and the first, the Karen National Defence Organisation, was set up in 1947, a year before independence. The Mon formed a similar militia in 1948, while the most militant of the Burman nationalists, the Communist Party of Burma, dismissed independence as a sham and resorted to armed struggle in April 1948. That war continued until 1989, when the hill-tribe rank-and-file of the CPB's army mutinied against the aging Burman leadership of the party and drove them into exile in China. But the army remains under a different name, the United Wa State Army, and although it has had a ceasefire agreement with the government in Rangoon since the mutiny, it still has at least 16,000 soldiers--and they are better armed and equipped than the CPB's army ever was.

An October 2005 report of the Thailand Burma Border Consortium (a Norwegian-funded organization which works closely with the UN) states:

Six percent of households [of displaced persons in eastern Burma] reported that they had at some point resorted to procuring a hand gun to minimize threats to safety and livelihoods. Given the threat of being suspected as either a rebel sympathizer by the SPDC or a government collaborator by the armed opposition, this gauge of the prevalence of assault weapons is considered high. Due to the breakdown in law and order and the ease of procurement, transport, concealment, and use, the prevalence of small arms is in itself a significant threat of violent insecurity.
 

(Executive Summary. Page 55 notes that some of the "hand guns" may be "simple hunting rifles.")

If you know more about the situation in Burma, please make a contribution to the Comments.

125 Comments

[David Kopel, September 28, 2007 at 11:46pm] Trackbacks

More Cool Non-Law Blogs

1. HogwartsProfessor.com. A very erudite blog run by Professor John Granger, who is so knowledgeable, hard-working, and good-hearted that he is undoubtedly a distant relative of Hermione Granger. Be sure to check out the blogroll too for more excellent Potter sites, especially the excellent Sword of Gryffindor.

2. The Anchoress. Musings on life, ethics (and sometimes current events) from an intelligent Roman Catholic perspective.

5 Comments
[David Kopel, September 25, 2007 at 4:05pm] Trackbacks

The Right to Arms in the DC(!) Constitution

Today I was examining an on-line copy of the Washington, D.C., municipal code, and came across a startling item. The D.C. government has enacted a "Constitution" which it styles as the "Constitution for the State of New Columbia." Apparently this was enacted in 1987, and presumably it supersedes the "Constitution of the State of New Columbia" which was enacted in 1982.

In the Bill of Rights section of the 1987 Constitution is the following:

Sec. 102. Right to keep and bear arms.
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 infringed.

The public Westlaw site of the D.C. Code provides a short history of the 1987 Constitution: "Law 7-8 was introduced in Council and assigned Bill No. 7-154, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on April 14, 1987 and May 5, 1987, respectively. Signed by the Mayor on May 6, 1987, it was assigned Act No. 7-19 and transmitted to both Houses of Congress for its review."

Now, because the District of Columbia has not yet become the State of "New Columbia", the 1987 Constitution has not yet gone into effect. Nevertheless, the Constitution has some interesting implications for the DC handgun ban case for which the Supreme Court is considering petitions for a writ of certiorari.

First, the DC government in 1987 chose to create a new constitution which, unlike the 1982 constitution, contained a right to keep and bear arms. The decision made the proposed DC constitution more normal, in that the vast majority of American state constitution have a right to keep and bear arms.

Second, the DC constitution used language which exactly tracks the U.S. Second Amendment, and the language of several state constitutions: North Carolina, South Carolina, Alaska, and Hawaii. Notably, in 1987, the state court cases on this precise language recognized the right as an individual one which included the right to own handguns. See, State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Dawson, 159 S.E.2d 1 (N.C. 1968). Cf. State v. Fennell, 382 S.E.2d 231 (N.C. 1989); State v. Mendoza, 920 P.2d 357, 363 n. 9 (Haw. 1996) (not deciding what type of right the arms guarantee was, but stating that interpreting the arms right as both collective and individual, subject to state police power, would be consistent with the majority of other state constitutions); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997) (holding right, in text that had been modified in 1994, is not violated by prohibition on gun possession by citizens on probation).

It is sometimes claimed (such as by DC lawyers in the instant litigation) that the Second Amendment phrasing is merely a protection of state militias from federal interference. The DC Constitution demonstrates the absurdity of the argument; nothing in the DC Constitution could overcome the Supremacy Clause and prevent federal control (pursuant to the U.S. Constitution) of the DC state militia. The only plausible explanation for the placement of the right to keep and bear arms language in the "Bill of Rights" section of the DC Constitution is that section 102 of the DC Constitution has precisely the same effect as every other section of the DC Constitution's Bill of Rights: to shield the individual rights of ordinary DC citizens from potential abuse by the New Columbia state government.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC's cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Strictly speaking, Presser is irrelevant, because D.C. is not yet a state, but even if D.C. were somehow considered a quasi-state, the D.C. Constitution shows D.C.'s desire to be subject to the language of the Second Amendment.

 

53 Comments


[David Kopel, September 21, 2007 at 6:07pm] Trackbacks

David A. Tomlinson, R.I.P.

On Tuesday, David A. Tomlinson passed away. For three decades, David had been the President of the National Firearms Association of Canada and an outstanding advocate of the rights of law-abiding Canadian firearms owners. I had the privilege of meeting David several times, and found him to be a true gentleman, and a gentle man. Canada has always had more gun controls than the United States, but the Canadian gun debate changed dramatically in the 1990s, when the Liberal government initiated a Kulturkampf against gun owners, aiming to eliminate the "masculine" culture which gun owners supposedly embodied. No one in Canada was more important in leading the resistance than David Tomlinson.

Although the situation of gun ownership in Canada is still precarious, there is a chance that Canada's rural culture of hunting and guns may survive. The corruption and enormous cost over-runs of the failed registry for long guns played a major role in the defeat of the Liberals by the anti-registration Conservatives in the latest Canadian election, in which Tomlinson worked very hard to mobilize citizen activists to defend their rights. He is a great example of how one man can make a difference.

The National Firearms Association website has a tribute to David. Below are some thoughts about David from his friend Cindy Lightheart:

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[David Kopel, September 21, 2007 at 3:20pm] Trackbacks

Brady II: The Objectives of the Gun Control Lobby:

In the early fall of 1994, the gun control movement achieved unprecedented success in Congress. The "Brady Bill" had been enacted in November 1993, and went into effect in February 1994. After a very tough political fight, President Clinton's omnibus crime bill was passed in August 1994. The bill included a 10-year ban on so-called "assault weapons," as well as other gun controls. Handgun Control, Inc. (which later changed its name to "The Brady Campaign" promptly began to push for legislation which it called "Brady II."

Although the bill was introduced, it did not receive a hearing in the final weeks of Congress before the election. The November 1994 elections resulted in a Republican landslide; in a December 1994 interview with the Cleveland Plain-Dealer, President Clinton stated that the NRA was the reason that the Republicans had won control of Congress.

Nevertheless, Brady II is worth remembering as a roadmap for the gun control lobby's hopes for "the next step" in federal gun control. Due to the results of the 1994 and subsequent elections, HCI/BC has not been so bold in its declared legislative agenda. It would be interesting to know which, if any, items from the Brady II bill are rejected today by the Brady Campaign or the political candidates which it has endorsed.

Arsenal licensing

Any person who owns 20 or more firearms or more than 1,000 rounds of ammunition or primers (e.g. two "bricks" of rimfire ammo) would be required to get an "arsenal" license. To obtain a federal arsenal license, a person would need to be fingerprinted, obtain permission of local zoning authorities, and pay a $300 tax every three years. Her home would be subjected to unannounced, warrantless inspection by the government up to three times a year. "Arsenal" owners would also have to obtain a $100,000 dollar insurance policy.

"Brady II" redefines "firearm" to include magazines and "any part of the action" (such as pins, springs, or screws). Thus, if a person has two Colt pistols, three Remington rifles, and four magazines (of any size) for each gun, then he own an "arsenal." Or if he owned two guns, six magazines, and a box of disassembled gun parts that contained five springs, five pins, and five screws, then he would own 23 "firearms" and would have to obtain an "arsenal" license.

Licensing

Every handgun buyer would be required to obtain a state handgun license. The license would be good for no more than two years. No-one could obtain a license without passing a state-controlled "safety" course. The fees for the license and the safety course would have no limits. The fees could be set far in excess of the state cost of providing the license and the course; instead, the fees could a source of general revenue.

Nothing would prevent licensing authorities from taking months or years to issue a license. And nothing would prevent the authorities from making the "safety" test so rigorous that almost no-one except an expert shooter could pass.

That an applicant had been shooting handguns for 50 years, or was an NRA certified safety instructor, or a proficient competitive target shooter would not exempt him from the requirement to pay for the government "safety" class.

Every handgun transfer (including one's adult son an old revolver) would be subject to these restrictions. In addition, every handgun transferred would have to be registered by make and serial number.

The late Pete Shields, the chair of HCI, in a 1976 interview, explained his strategy for using registration as a way-station to handgun confiscation:

"The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition--expect for the police, licensed security guards, licensed sporting clubs, and licensed gun collectors--totally illegal.

(Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58).

The Brady Campaign currently denies that it wants to confiscate handguns. But, to the extent that the promise is sincere, is it more likely to be kept than the group's earlier (and broken) promise "our organization, Handgun Control, Inc. does not propose further controls on rifles and shotguns. Rifles and shotguns are not the problem; they are not concealable." (Pete Shields, Guns Don't Die--People Do, Priam Press, 1981, pp. 47-48).

Taxes

Currently, the price of guns and ammunition is increased by an 11% federal excise tax, revenues from which go to improve hunting habitat and to fund the development of target ranges. Brady II would increase the taxes to 30% on handguns, and 50% on ammunition. So a $500 pistol would cost $650, and a $20 box of ammunition would cost $30.

The tax revenues, instead of being spent on the shooting sports, would be spent on health care.

Persons Barred from Gun Ownership

The list of persons banned by federal law from owning any gun would be expanded. A person who got into a bar fight 20 years ago, and pleaded guilty to misdemeanor third-degree assault, would be barred (ex post facto) for the rest of his life from owning any gun. (And subject to a mandatory five years in federal prison for a violation.) Any other crime, no matter, how petty, that involved the use or threatened use of force would likewise become a lifetime prohibition.

Possession of handguns or handgun ammunition by a person under the age of 21, or possession of any guns or ammunition by a person under the age of 16, would be illegal. Leetting one's 15 year old nephew borrow a single-shot .22 rifle to go target-shooting on one's own farm would be a federal crime. Gun possession under immediate adult supervision would still be allowed.

Gun and Magazine Bans

All magazines which hold more than 6 rounds would be outlawed. Possession of existing magazines with a larger capacity would be allowed under the same terms as currently applicable to possession of machine guns: a 10-point FBI fingerprint; an expensive federal tax; and possession only allowed if a letter of authorization from the local police chief is obtained.

"Saturday Night Specials" would be outlawed. They would be defined as:

1. A handgun with any parts made of zinc alloy.
2. Any handgun that uses .22 short ammunition. Many guns that use .22 long rifle can also use .22 short, and would thus be banned.
3. Any revolver with a barrel less than 3 inches.
4. Any semi-automatic pistol with combined height and length of less than 10 inches.
5. Any semi-automatic pistol without a "positive manually operated safety device."

Other Provisions

It would become a federal crime to buy more than one handgun a month.

A permanent 7-day waiting period would be imposed on all handgun transfers (including gifts between family members).

All firearms would have to be "properly stored" is prevent access by anyone under the age of 16.

Gun shows would be destroyed, since licensed firearms dealers would not be allowed to sell guns at the show.

If "Brady II" had become law, what would have been the key to "Brady III" or "Brady IV"? Mrs. Brady has already told us.

She wants a "needs-based licensing" system, under which no one could own any gun unless the local police chief decided that the person "needed" to have the gun. (Erik Eckhom, "A Little Gun Control, a Lot of Guns," New York Times, Aug. 15, 1993, p. B1).

Ownership of a gun for protection would not be considered a legitimate "need." Says Mrs. Brady "To me, the only reason for guns in civilian hands is for sporting purposes." (Tom Jackson, "Keeping the Battle Alive," Tampa Tribune, Oct. 21, 1993.)

The Brady Campaign's current rhetoric is much milder, and the group claims not to oppose defensive gun ownership.

Update: Here is a link to the bill itself, H. R. 3932, introduced March 1, 1994, by Rep. Charles Schumer. A parallel bill, S. 1878, was introduced in the Senate on Feb. 28, 1994, by Senator Howard Metzenbaum. It was cosponsored Senators Kennedy, Bradley, Lautenberg, Boxer, Pell, and Chafee.

141 Comments


[David Kopel, September 18, 2007 at 10:50pm] Trackbacks

Movie Welfare Bleg:

Many states and nations have begun offering "incentives" (corporate welfare) for movie-making in their jurisdiction. The subsidies are commonly justified on the grounds that they help the local economy. Do any readers know of any studies assessing to what degree, if any, film industry subsidies actually do benefit the economy of the subsidy-giver? If you have answers (not just speculation), please supply them in the Comments. Thank you.

18 Comments
[David Kopel, September 16, 2007 at 10:53pm] Trackbacks

Significant Developments in DC Case on Handgun and Self-Defense Bans

This spring, the DC Court of Appeals ruled in the case of Parker v. District of Columbia. The case had three important legal holdings:

1. Five of the six plaintiffs did not have standing to sue, because the mere threat of criminal prosecution for exercising their constitutional rights was not sufficient to confer standing. The ruling was based on an extension of a previous DC case, Navegar, which had involved challenges to the federal ban on "assault weapons."

2. The DC government's complete ban on handguns (other than handguns which were registered in DC before the ban went into effect) violated the Second Amendment.

3. DC's ban on the possession of functional long guns was also a violation of the Second Amendment. DC requires that all rifles and shotguns be locked up or disassembled, and there is no exception in the law for self-defense.

DC's attorneys asked the Court of Appeals to stay its mandate, so that the DC ordinances could remain in effect while DC petitioned the Supreme Court for a writ of certiorari.

But when DC filed its petition, the petition flagrantly violated DC's representations to the Court of Appeals. DC's petition for a writ of certiorari presents one, and only one question: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." This question of course addresses the handgun ban, but does not address the separate holding of the ban on defensive long guns. By Supreme Court rules, the DC petition was required to list all statutes or ordinances which are at issue in the petition, and the DC petition does not list the ordinance containing the self-defense ban.

The strategic implications of DC's decision are enormous. It appears that DC has decided that its long-gun self-defense ban is constitutionally indefensible. The most logical inference is that DC (despite statements by the Mayor at press conferences) has concluded that it cannot convince the Supreme Court that the Second Amendment is not an individual right. DC is retreating to position that the individual Second Amendment right is not violated by a handgun ban, as long as individuals can possess other guns.

Consistent with the DC retreat, the cert. petition itself is quite short on legal reasoning, and amounts to a mini-policy paper on the alleged horrors of allowing licensed citizens to possess registered handguns in their own homes.

The only thing that the DC cert. petition says about the self-defense ban is in a footnote: "The majority read this provision to forbid loading, assembling, and unlocking even a lawfully possessed firearm for use in self-defense. App. 55a. On that reading, it held the provision unconstitutional. The District does not, however, construe this provision to prevent the use of a lawful firearm in self-defense."

Well, if DC thinks that the Court of Appeals "reading" of the straightforward language of the DC Code is incorrect, then the DC cert. petition could have asked the Supreme Court for a second reading. But the petition did not.

Instead, DC falsely told the Court that a person in DC "may lawfully possess a rifle or shotgun to protect himself."

Accordingly, Alan Gura, the lead lawyer for the appellants in the case, has moved that the DC Court of Appeals lift its stay of its mandate, regarding the striking of the unconstitutional ban on defensive long guns. The motion is available on-line, as are all other filings in the case. Gura's motion is an excellent example of forceful yet temperate legal writing.

Gura has also filed, with the Supreme Court, his own petition for a writ of certiorari, asking for a cross-appeal of the DC Court of Appeals' highly restrictive rule on standing, which he says is contrary to other Circuits, and to Supreme Court precedent.

DC now has 30 days to respond to Gura's cross-petition, so the time when the Supreme Court will decide on whether to grant cert. is probably around November 5-12. Accordingly, should the Court grant cert., the case would probably among the very last for which oral argument was held in the coming Term.

31 Comments
[David Kopel, September 12, 2007 at 12:05pm] Trackbacks

Interviews with a Muslim:

Last year, on the day after the anniversary of the September 11 attacks, Pope Benedict XVI spoke at Regensberg University, on the subject of Christian truth, and of Christian dialogue with other faiths, especially Islam. Although there has been plenty of media coverage of the Pope's remarks, and of the reaction by Rage Boy and other Islamists, one part of the story has been conspicuously absent: the text from which the Pope's remarks were taken. So this article supplies the missing context.

In 1391 in the East, Islam was ascendant, and Christianity barely hanging on. Manuel II Paleologue ruled the Byzantine "Empire", a territory not much larger than an American state, consisting of Constantinople and some small parts of modern-day Greece and Bulgaria. Accordingly, Manuel was obliged in the early 1391 pay tribute at the court of the Ottoman Sultan Bajazet I.

There, Manuel met a very learned, older Persian gentleman, who asked Manuel to discuss with him the comparative merits of Islam and Christianity. The Persian, who perhaps was a professor, explained that he had already learned much about Christianity, but he wished to discuss the topic with a genuine advocate of Christianity, rather than with a Muslim giving an incomplete defense of the Christian faith.

So for 26 nights, the pair debated. The discussions were recorded by some members of Manuel's court, probably to the benefit of their prince. The full dialogues have been recorded in Greek, and the dialogue of the seventh night has been translated into French, presumably because of its significance. It was from the 1966 French edition, translated and edited by Theodore Khoury, that Benedict XVI quoted, Entretiens Avec un Musluman: 7e Controverse (Interviews with a Muslim: 7th Controversy). No edition presently exists in English. (The French translation of the dialogue itself, without Khoury's extensive analysis, is here.)

The dialogues were complicated because Manuel and the Persian did not speak other's language, nor did anyone in their retinues. So statements had to be translated from Greek to Turkish, and then from Turkish to Persian. (Or translated in other direction.)

One notable feature of the dialogue between Manuel and the Persian is that neither side relied on scriptural proof-texts. Although the 20th-century editor Khoury pronounces the interviews a failure because neither side could ultimately enter into the mental world of the other, the dialogues strike me as a heroic effort by both parties to overcome their linguistic and cultural differences, and to engage in a sincere discussion of the most fundamental issues of life, with neither side relying on proof-texts which the other side could not accept.

The broad topic of the 7th Controversy is the relative merits of the Christian and Islamic Laws. The dialogues took place during a crisis of confidence of Orthodox Christianity, for the Byzantines, like the ancient Israelites (and the Muslims), believed that God bestowed military success upon the righteous. At the time, the Islamic Ottomans were plainly ascendant over the Byzantines.

In small details, we see differences between medieval Persian-Turkish Islam, and the more austere contemporary Arab extremist versions. According to the Persian, paradise is replete not only with young women, but also with dogs (presumably hunting dogs). In contrast, modern Islamo-fascists abhor even guide dogs for the blind as unclean, and dogs are banned from "Saudi" Arabia.

Early in the dialogue, Manuel raises the issue of religious conversion by force. Under Islamic practice, conquered "people of the book", that is, Christians and Jews, were allowed to retain their religion, in exchange for submission as second-class citizens ("dhimmis")--required to pay punitive taxes, forbidden possess arms, and reduced to complete social inferiority to Muslims, including being prohibited from defending themselves against violent criminal attacks by Muslims.

Adherents of other religions, such as Hindus, Buddhists, Zoroastrians, or pagan sects, fared much worse; their choice was conversion to Islam, or slavery.

Near the beginning of the 7th Controversy, Manuel, as quoted by Benedict XVI asks, "Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." (The editor added a citation to Sura 9 of the Koran.)

Benedict elaborated:

The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood -- and not acting reasonably is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats… To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death…"

The decisive statement in this argument against violent conversion is this: not to act in accordance with reason is contrary to God's nature. The editor, Theodore Khoury, observes: "For the emperor, as a Byzantine shaped by Greek philosophy, this statement is self-evident. But for Muslim teaching, God is absolutely transcendent. His will is not bound up with any of our categories, even that of rationality." Here Khoury quotes a work of the noted French Muslim R[oger] Arnaldez, who points out that [the famous Muslim philosopher] Ibn Hazn went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practice idolatry.

An October 2006 joint letter of 38 leading Muslim scholars and clerics, in response to the Regensberg speech, denied that conversion by the sword is a tenet is Islam. (The issue depends on whether Koran 2:256, "There is no compulsion in religion," is abrogated by later verses.) As for the charge that Mohammad had introduced nothing new that was good, the scholars responded that Mohammad never claimed to be declaring novel doctrines.

Likewise, the educated Persian of 1391 did not attempt to defend the irrational doctrine of conversion by the sword.

Educated though he was, the Persian perhaps did not think of the specific counter-arguments which the 38 scholars of 2006 deployed. So there followed a long pause. Manuel's translator, a Muslim with Christian parents, seemed to Manuel to be discretely pleased with the speech, and he quietly warned the educated Persian that if he could not reply, the Muslims would have to concede victory in the debate to the Christians.

Finally, the Persian replied. He did not directly respond to Manuel's points. Instead, he changed the topic by arguing that the Christian law, while admirable, was inhumane.

In particular, the Persian listed the seemingly extreme demands of the Sermon on the Mount (love your enemies, do not resist evil, and so on), along with a few other extreme statements of Jesus (e.g., to follow me, you must hate your parents). Perhaps a man made of diamonds could comply with these extreme precepts, but real human could not, said the Persian. At length he denounced the Christian preference for lifelong virginity. It was contrary to human nature, and contrary to the way that God had created the world in Genesis (with two sexes who were meant to couple). The ultimate result would be the extinction of human race. Islamic Law, in contrast, was moderate, in accordance with human nature, and an example of the virtuous Golden Mean. (The Persian was apparently well-acquainted with the principle from Greek and Latin philosophy.)

Manuel answered that, first of all, extraordinary things are possible for humans, with God's help. God can provide every person with the will and the means to achieve everything necessary to enter the Kingdom of Heaven. Moreover, the items listed by Manuel were not absolute rules; rather, they were exhortations and advice, or forms of spiritual combat, which were for people most perfected in the faith.

In response to a follow-up question from the Persian, Manuel delivered a beautiful, but overly long disquisition on the above point, explaining that Christianity had room for many sorts of people; one did not have to imitate the early Christians by practicing lifelong virginity and poverty. However, the greatest rewards in Heaven were for those who did, for they became the children of God.

As the dialogue continued through the night, the Persian brought the discussion back to a comparison of the Islamic and Christian laws, and challenged Manuel to prove the Islamic law inferior. Manuel resorted to a traditional Greek argument against Islam:

Islam claims that the Mosaic Law was good, the Christian Law better, and the Islamic Law the best of all, perfecting the Christian Law. Yet Mohammed revived parts of the Mosaic Law that Christianity had abolished, such as the prohibition on eating pork, and the requirement that if a husband dies without having given his wife a child, one of the husband's brothers must marry the widow. Thus, Islam was illogical in proclaiming the superiority of Christian Law to Mosaic Law, while reversing Christian abrogations of Mosaic Law.

The Persian had no response except to affirm the superiority of Islamic Law, and request that Manuel continue his arguments. Manuel did so, adding circumcision to the list of Mosaic Laws which were eliminated by Christianity but revived by Islamic Law.

The Persians talked among themselves at great length. Then, the Persian politely said that the night's discussions should conclude, because Manuel was supposed to go hunting in morning with Bajazet, and Manuel was already cold, so Manuel should have a chance to rest and get warm.

Was the Persian able to provide good counter-arguments when the interviews resumed the next evening? I do not know. I am not aware of any English or French translations of the 8th Controversy.

The 7th Controversy, as part of the 26 Interviews with a Muslim, is an admirable testament to the ability of the best minds of the 14th century to engage in serious interfaith dialogue. Both sides believed that religious truth is real, and not relative; both sides frankly presented their best arguments, based on reason and human experience. Neither side shied away from frank criticisms of the other, and neither side relied on its own scripture to trumpet its superiority over people who did not believe in that scripture.

Notwithstanding Rage Boy and similar hate-filled Islamist cretins, and notwithstanding hate-filled Christians and Jews, many millions of adherents of the Abrahamic faiths are ready to engage each other in sincere dialogue, as did the Emperor Manuel and the educated Persian. The dialogue cannot reasonably result in the conclusion that "all religions are equally true," for all of the three faiths contain statements of theological fact that are incompatible with the notion that any religion is as good as any other.

Today, the ascendancy of post-modernism and political correctness in much of the Judeo-Christian world (terrified of asserting that absolute theological truths exist, and terrified of reason itself) and of Islamofascism in much of the Muslim world (likewise terrified of reason itself) stifles meaningful interfaith dialogue. The best response to Manuel II Paleologue, the educated Persian, Pope Benedict XVI, and the 38 Muslim scholars, would be to follow their example by engaging in hard-headed and soft-hearted interfaith dialogues. For surely rational discussion about God is itself a type of homage to God.

30 Comments


[David Kopel, September 8, 2007 at 5:10pm] Trackbacks

New Kopel stuff

In today's Rocky Mountain News media column, I praise the Denver Post's new website, PoliticsWest.com, which uses blog power to expand the paper's coverage of politics throughout the Rocky Mountains. My previous column dealt with a topic which I had first raised on the VC (and on which the comments provided good insight): the law and ethics of a talk radio host encouraging the videotaping of patrons of a swinger's club.

On my father's website, there's a new article which uses Labor Day to remember the Colorado state government's massacre of the striking coal miners at Ludlow, Colorado. In another column, he details the battle between then-Republican Governor Bill Owens and former Republican Secretary of State Natalie Meyer over casino regulation. Owens won in the short term, but Democratic Governor Bill Ritter is now carrying out Meyer's program for more regulatory employees.

5 Comments
[David Kopel, September 7, 2007 at 7:13pm] Trackbacks

The Questions for Senator Thompson:

Below are the questions from VC readers which I just sent to Senator Thompson, pursuant to his invitation. The readers came up with an excellent variety of questions, and I would be interested in Senator Thompson's answers to almost all of them. The campaign had only asked for 4-5 questions, and I stretched by submitting 6; if there had been more questions, I would have included some of the questions on telecom policy, shrinking the federal government, and illegal immigration. I aimed for questions that were fairly specific, so as to elicit an answer (I hope) which reveals substance, rather than something that can be answered with broad platitudes. For example, Giuliani and Thompson both claim to strongly support the Second Amendment, and the Court of Appeals ruling in the DC ban on handguns and on armed self-defense; so I picked a gun question that invites a precise answer, and which could reveal differences between the candidates. In general, I aimed for forward-looking questions ("what would you do" rather than "what would you have done?" questions). For almost all the questions, I made slight editing changes (and some I added a subquestion to get some precise information about future policy).

In general, I think that all of the questions raise important issues, and that most of them are unlikely to get asked in a standard debate format. If any other Presidential candidates want to solicit questions from VC readers, they are of course welcome to do so!
 

1. What is your view of civil asset forfeiture in the absence of a criminal conviction? Would you make any changes in current executive branch policies, or propose any changes in federal forfeiture laws? 

2. Do you believe that Gonzales v. Raich was correctly decided? If you were President, would your Department of Justice take action against patients and providers of medical marijuana who were acting in compliance with state law?

3. If Roe v Wade were overturned, would your commitment to federalism compel you to veto a congressional bill banning abortion? Or in a post-Roe world would you seek to ban abortion by federal law regardless of the wishes of the individual states?

4. Which Attorney General do you most admire? Why?

5. Which, if any, federal gun control laws do you support repealing?

6. You were instrumental in securing passage of McCain-Feingold. Have your views on either the law's effectiveness or constitutionality changed in the years since it was passed, and what would you do about the continually-increasing purview of the Federal Elections Commission? Would you favor new legislation to protect the Internet or non-profits from McCain-Feingold?

Related Posts (on one page):
  1. The Questions for Senator Thompson:
  2. Ask Fred Thompson a question:
13 Comments  

[David Kopel, September 6, 2007 at 12:13am] Trackbacks

Ask Fred Thompson a question:

Would you like to ask presidential candidate Fred Thompson a question? Especially a question on a legal topic? The Thompson campaign has solicited questions from several leading weblogs, including this one. Here's the announcement:

On Thursday, Fred Thompson will be kicking off his campaign for the presidency in Des Moines, IA, touring through the early primary states of Iowa, New Hampshire and South Carolina before visiting Florida and returning to Lawrenceburg, TN for a homecoming celebration.

While on this tour, Fred Thompson will be answering the tough questions, whether they come from a voter at a town hall meeting in New Hampshire or from the nation's top journalists. However, Fred wants to make sure that you get a chance to get your questions answered as well, so we're asking some bloggers to help us pick good questions from you. The bloggers will solicit your questions, select the best questions and send them to Fred Thompson to answer. Fred will be responding to some of your questions each day via video and posting those responses to our website.

We invite you to submit a question for Fred here, and check http://fred08.com/ often for Fred's dispatches from the road.

Just enter your question in the Comments section. I will select the best four or five, and pass them on to the Thompson campaign. Questions on law topics are strongly favored. Comments which do not appear to be serious questions may be deleted. Related Posts (on one page):
  1. The Questions for Senator Thompson:
  2. Ask Fred Thompson a question:
109 Comments
[David Kopel, September 5, 2007 at 5:26pm] Trackbacks

Re-examining Television of the 1960s and 1970s:

Thanks to Netflix, I have been practicing my French skills by watching television shows from the 1960s and 1970s which have dialogue in French. It's very impressive how the French producers (or whoever did the dubbing) found actors whose intonations and emotional style are so close to that of the English language actors. However, not all the shows seem as excellent now as they did to me back then. It really is fair to say that a lot of "big 3" network television shows today are much more sophisticated than the network fare of past eras. My retrospective analysis:

The Mary Tyler Moore Show. Still great after all these years. One of the best ensemble casts ever to appear on television. I just wish that those two guys who always sat at desks in the back of the newsroom had gotten a line once in a while.

The Flintstones. Hideous. It's frightening to think that this was a prime-time evening show (not a Saturday morning cartoon) from 1960-66. And the repeated backgrounds (e.g., during driving scenes) drive me crazy.

The Time Tunnel. Lots of fun. And some great guest appearances--such as Carroll O'Connor as a British commander at the Battle of New Orleans and as his descendant, a modern American General.

MASH. A very strong cast, but insufferably didactic scripts and plots. By comparison, the moral lessons in "Veggie Tales" are understated and subtle.

Lost in Space. Not nearly as good the second time around. Mainly because the plots always involve Dr. Smith doing something stupid and getting everyone into trouble, with Will and the Robot coming along for the ride. The rest of the cast is underutilized, especially the girls.

Planet of the Apes. I didn't watch this one when it first aired, but it's pretty good so far. The individual episodes have a broad enough variety of ape and human personality types to keep things interesting.

94 Comments

[David Kopel, August 30, 2007 at 4:49pm] Trackbacks

Chinese History Bleg

What role, if any, did Confucian scholars play in the overthrow of the Han Dynasty in China in 220 a.d.? If possible, please include a citation with your answer. Thanks! 20 Comments


[David Kopel, August 21, 2007 at 2:43pm] Trackbacks

Dhimmitude and Disarmament

In a short article forthcoming in the George Mason University Civil Rights Law Journal, I examine the work of the scholar Ba'at Yeor, the leading scholar of Dhimmitude (the inferior status of Christians, Jews, and, sometimes, other religious groups) under traditional Islamic law. The article looks in particular at the effect of the Shari'a rule that the dhimmi are forbidden to possess arms, or to defend themselves against a Muslim. The final section of the article suggests that at the many American educational institutions where pretend "gun-free" zones have been created, law-abiding adults have been rendered as defenseless against marauders as were the dhimmi of earlier centuries.

22 Comments

[David Kopel, August 20, 2007 at 2:28pm] Trackbacks

Virginia Tech Bleg:

Virginia Polytechnic University has a policy manual instructing employees how to deal with a violent or angry individual. Among those instructions are that if the violent/angry person has a gun, and offers to hand over the gun to the employee, the employee should not accept the gun. Instead, the employee should call security. Does anyone have a copy/cite of this policy? If so, please post the appropriate information in the Comments section. (Or if you prefer to remain completely anonymous, just send to me via the e-mail link from www.davekopel.org.) Please note that I am not looking for the Virginia Tech policy which bans all professors and students from possessing firearms on campus. Thank you.

As usual, the VC's excellent readership comes through. See the 7th comment, below, for a link to the VT policy. 31 Comments


David Kopel, August 10, 2007 at 11:50pm] Trackbacks

Privacy Law and Ethics Questions:

Below is description of a current privacy controversy in Colorado. I invite the VC's readers to supply answers any of the legal and ethical questions.

Facts: Sugar House is a swingers' club, set to open in a Denver area neighborhood on August 25. One of the purposes of the club is to facilitate sexual encounters among members; presumably spouse-swapping is among the facilitated activities.

For purposes of this question, assume that Sugar House is in compliance with all zoning laws (although some people in the neighborhood do not think so). Likewise, assume that Sugar House is not violating any laws. (This assumption sets aside Colorado law by which adultery [sex by a married person someone other than the person's spouse] is defined as a crime, but there is no punishment for the crime.)

KHOW-AM radio host Dan Caplis has urged people in the neighborhood to attempt to drive out Sugar Hill by taking photos and videos of every person entering or leaving Sugar Hill. (The issue is discussed in the last hour of the August 10 show. You can listen via the "Radio Rewind" feature on the KHOW website, which requires free registration.) He argues that clubs such as Sugar House are bad for any neighborhood, because children might walk by, and because the club's purpose is promoting activities which are harmful to society. Caplis has said that he believes that what he is encouraging is legal, and has also said that if he is wrong, he will issue a correction.

Legal questions:

1. Under Colorado and federal law, is Caplis correct? What about the laws of other jurisdictions?

2. Does the answer depend on what the photographers do with the captured images? If the images are just viewed at home by the person who took them? If the images are distributed for free (e.g., by photocopied flyers, or on a non-commercial website)? If the images are given to the media for publication? If the images are used by people in the neighborhood to identify the customers of Sugar House, and then the images are sent to persons who know the customer (e.g., employers, family)?

Ethical questions:

1. Hypothesizing that the above photo/video conduct is legal, is it ethical?

2. Would the ethical answer change depending on whether the establishment were some other entity which deeply offended several people in a neighborhood? Depending on the neighborhood, some people might be extremely offended by: a Communist bookstore, a white supremacist bookstore, a tavern, a strip club, an adult book or video store, a birth control clinic, an abortion clinic (presume that for the clinics, the photographers use telephoto lenses, so as to comply with bubble laws), a Wiccan religious center, or a gun store. In answering this question, presume that the establishment is fully compliant with all zoning and other laws.

3. If your answer is the photography/video would be ethical for at least one but not every establishment on the list, is there a rationale other than your personal hierarchy of what activities are most detestable? If a person with a different hierarchy of detestation wanted to photograph/film the customers of an establishment which you liked, could you offer any arguments, other than urging him to adopt your own hierarchy of values?

UPDATE: Here is a link to a 1995 article by the Colorado law firm Fairfields & Woods. Although the article is mainly about employer surveillance of employees, it does offer some interesting ideas. In terms of statutory law, a video which captured conversations might violate Colorado's wiretap law, if the videographer were concealed from the people who were talking. The relevant torts (for Sugar House customers) might be "unreasonable disclosure of personal facts" and "unreasonable intrusion into the private affairs of another." A key question is whether the publicity or intrusion would be "highly offensive to a reasonable person."

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David Kopel, August 7, 2007 at 7:09pm] Trackbacks

All's Well that Ends Well--Colorado Shakespeare Festival

All's Well that Ends Well is one of Shakespeare's less-performed plays--and for good reason. Yet many people, myself included, hope to see every Shakespeare play at least once in our lives, and for people like us, the current production at the Colorado Shakespeare Festival is a good choice. The plot revolves around the obsessive, relentless love of Helena--the intelligent, strong-willed, and conniving daughter of a brilliant physician--for her social superior, Count Bertram. The play has the typical Shakespeare quota of disguises, cross-dressing, and clever tricks.

Usually the Shakespeare plays that end with marriage leave us happy, but it's not at all clear that the play really does "end well." Helena gets her man, but the fourth and fifth acts have revealed Bertram to be just as shallow, selfish, and wildly mendacious as his comically dishonest friend Parolles; indeed, Parolles at least recognizes himself, Bertram, and Bertram's friends for the rogues that they are.

The trend these days is to set Shakespeare performances in futuristic techno-worlds, or tribal Africa, or a 1950s drive-in, or any other location remote from the world of Shakespeare himself. The CSF production is a welcome change of pace, set in Restoration England, which happens to be the period of the earliest recorded performance of All's Well. The text itself sets the play in France and Italy, during a war between Florence and Siena. The Restoration motif isn't precisely contemporaneous with the literal text, but it's reasonably close.

The CSF version is said to take place precisely in 1660, the year that woman first appeared on stage in Shakespeare plays. So the play opens with an all-male cast "rehearsing" a production of All's Well. Soon, a message arrives from the king declaring that females should now play female parts; so several actors must yield their parts to actresses. The man who was playing Helena gets replaced, and he resentfully takes over the role of Bertram. The forced transition adds some depth to Bertram's hostility to Helena, and his ultimate reconciliation to his role as her spouse. It's interesting to see men playing women as they did at the time of Shakespeare himself, and one female character is still played by a man the whole way through.

The dramaturge's notes explain that this year's production is about gender and identity, and the threatening but positive effects of changing traditional roles. The approach is reasonable enough, given that Helena takes the traditional male role as the pursuer, and that her medical knowledge cures the French King of a fatal disease. But it's just silly to declare, as the dramaturge does, http://www.coloradoshakes.org/plays/play.php?Year=2007&Play=33 that "opponents of Pelosi and [Hillary] Clinton seek to marginalize them for their assertive qualities." As if opponents on the right do not just as vehemently oppose male supporters of the Pelosi/Clinton policies, and as if opponents on the left (such as Daily Kos for Clinton, or Cindy Sheehan for Pelosi) are motivated by gender animus rather than disagreement on the issues.

All's Well is at least in part a comedy, and so it is full Shakespeare's love of sexual double entendres and ribaldry. Accentuating the theme of changing gender boundaries, the cast inflects the script with male-male sexual wordplay--all delivered by guys with shoulder-length hair and flouncy outfits.

All of the costumes, for whatever gender, are gorgeous, and so are the sets. The acting performances are solid, especially that of Bertram's mother, the Countess, which is one of Shakespeare's few major roles for an older female. Falstaff (from Shakespeare's histories), may be Shakespeare's most famous comic oaf, but you'll miss out if you never see a Parolles on stage.

Perhaps the only weak link in the cast is Bertram, a talented but seemingly miscast actor who never displays the charisma that necessary for such a successful rake.

All's Well that Ends Well continues for two more weeks at the University of Colorado at Boulder, along with A Midsummer Night's Dream, and Julius Caesar, plus two non-Shakespeare plays: Around the World in 80 Days, and the 18th-century Italian comedy The Servant of Two Masters.

And for those of you who are fans of rarely-performed Shakespeare, start making plans for next summer's Henry VIII. 20 Comments

 

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