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Christopher Hitchens' latest column in Slate states: "In April 2004, Barack Obama told a reporter from the Chicago Sun-Times that he had three spiritual mentors or counselors: Jeremiah Wright, James Meeks, and Father Michael Pfleger--for a change of pace, a white Catholic preacher who has a close personal feeling for the man he calls (as does Obama) Minister Farrakhan."

Pfleger is the Pastor at St. Sabina's Catholic Church, on the South Side of Chicago. So I searched Westlaw's ALLNEWS database for "Obama and Pfleger."

According to the April 5, 2004 Chicago Sun-Times article cited by Hitchens:

Friends and advisers, such as the Rev. Michael Pfleger, pastor of St. Sabina Roman Catholic Church in the Auburn--Gresham community on the South Side, who has known Obama for the better part of 20 years, help him keep that compass set, he says.

"I always have felt in him this consciousness that, at the end of the day, with all of us, you've got to face God," Pfleger says of Obama. "Faith is key to his life, no question about it. [It is] central to who he is, and not just in his work in the political field, but as a man, as a black man, as a husband, as a father.... I don't think he could easily divorce his faith from who he is."

As Hitchens wrote, Rev. Pfleger is indeed an admirer of "Minister Farrakhan." Ambushed by a Bill O'Reilly camera crew, Pfleger stated: "He has--first of all, he has not called Judaism a gutter religion of blood suckers. That is not what he has said because I have heard that talk. I stick up for Louis Farrakhan because he is another person that the media has chosen to define how they want to do it. And they demonize how they want to demonize somebody. I know the man, Louis Farrakhan. He is a great man. I have great respect for him, ho has done an awful lot for people and this country, black, white, and brown. He's a friend of mine." (The O'Reilly Factor, Apr. 3, 2008.) Farrakhan spoke at St. Sabina's on May 25, 2007. (Chicago Sun Times, May 10, 2007.)

Like Rev. Jeremiah Wright, who was recently an invited speaker at Rev. Pfleger's church, Rev. Pfleger believes that "racism is still America's greatest addiction." (Chicago Sun Times, Jan. 17, 2004.)

In September 2007 in Iowa, Plfeger participated in forums on the role of spirituality in politics, which the Obama campaign had organized. (US Federal News, Oct. 1 & 14, 2007; Chicago Sun Times, Sept. 12, 2007). The Obama campaign touted Pfleger's endorsement, listing him as one of about a dozen prominent ministers who supported Obama. (Daily Herald (Arlington Heights, IL), May 8, 2007.)

As a state legislator, Obama obtained $225,000 in grants for St. Sabina. (Chicago Tribune, May 2, 2007.)

Rev. Pfleger was a prominent early endorser of Obama's successful 2004 Senate campaign, as well as his unsuccessful 2000 challenge to U.S. Rep. Bobby Rush.

Rev. Pfleger's church has taken some admirable stands against the degradation of American culture, such as speaking out against abusive rap music, and hosting a speaker who exposed the anti-Catholic compilation of lies in "The DaVinci Code." (Chicago Defender, May 15, 2006.) St. Sabina also organized a rally against the genocide in Darfur. (Chicago Sun Times, May 19, 2005.) Rev. Pfleger appeared at a press conference to support state legislator Obama's bill requiring the police to keep statistics on the race of motorists who were stopped by the police, so as to deter racial profiling. (Chicago Defender, Feb. 20, 2001.)

Rev. Pfleger also appeared at a press conference announcing State Senator Obama's proposal to outlaw the sale of bidi cigarettes--a type of high-nicotine hand-rolled cigarette which is made in India. (Chicago Defender, Feb. 5, 2000.)

Rev. Pfleger does not respect the property rights of persons who sell products he does not like. He "is known for climbing ladders to deface liquor billboards." (Crain's Chicago Business, Dec. 20, 2004.)

The Westlaw database does not indicate that Sen. Obama has participated in the project which has gained Rev. Pfleger notoriety among Bill of Rights advocates: his persecution of Chuck's Gun Shop. Since all firearms stores have been driven out of Chicago, the closest firearms store to Chicago is Chuck's Gun Shop, in Riverdale, a short distance south of Chicago. Pursuant to Illinois law, Chuck's only sells guns to customers who have already obtained a Firearms Owner's Identification Card (FOID) issued by the Illinois State Police after a background check. The employees of Chuck's Gun Shop have also voluntarily undertaken the "Don't lie for the other guy" training program sponsored by the National Shooting Sports Foundation and the Bureau of Alcohol, Tobacco, Firearms and Explosives, to help gun store employees detect straw purchases (purchases by legal buyers conducted on behalf of prohibited persons).

Yet the Reverends Michael Pfleger and Jesse Jackson have been organized large crowds to repeatedly picket Chuck's Gun Shop. On June 23, 2007, Revs. Jackson and Pfleger were arrested for criminally obstructing the entrance to the store. The charges were eventually dropped, just as Governor George Wallace never was criminally punished for standing in a doorway to obstruct the exercise of constitutional rights. (The comparison is a little unfair, since Wallace eventually stood aside, whereas Jackson and Pfleger had to be physically removed by the police.)

In another demonstration at Chuck's Gun Shop, owned by John Riggio, Rev. Pfleger told the crowd: "We're going to find you and snuff you out....Like a rat you're going to hide. But like a rat, we're going to catch you and pull you out....We're going to snuff out John Riggio." Rev. Pfleger also promised: "We're going to snuff out legislators that are voting against our gun laws. We're coming for you because we're not going to sit idly."

Rev. Pfleger later denied that his words had been meant to invoke violence, or that he had known that "snuff out" means to "kill." Rather, the determination to "snuff out" Riggio was a determination to find out his home address, which was not publically available.

According to Roget's Thesaurus, "snuff out" means "kill" and is similar to the following words: "blow away, bump off, chill, dispatch, dispose of, do away with, do in, dust, grease, hit, ice, knock off, murder, off, rub out, stretch out, waste, wax, whack, zap." In response to Rev. Pfleger's words, Cardinal Francis George, of the Archdiocese of Chicago, stated: "Publicly delivering a threat against anyone's life betrays the civil order and is morally outrageous, especially if this threat came from a priest." (Chicago Sun Times, June 8, 2007.)

Rev. Pfleger proclaimed that the protests would continue (and that he would refuse to pay a fee imposed by a city ordinance to pay for the police services necessitated by the picketing) until the Riverdale city council decides to eliminate all gun stores, and "vote Riverdale gun-free." Or as Rev. Pfleger's picketers chanted, "Vote Riverdale gun dry." (Chicago Defender, Oct. 29, 2007).

Every American voter will have to decide how much importance, if any, to give to Sen. Obama's association with Rev. Pfleger. In my own view, I give greater attention to a religious figure who is a long-standing personal advisor to a candidate than to a religious figure who is merely one of thousands of political allies whom the candidate seeks out during a campaign. In deciding how to vote, I ignore purely theological issues (e.g., whether the Mitt Romney's LDS view of the afterlife is more plausible or less plausible than John Kerry's Roman Catholic view), but I consider the extent to which the candidate's religious philosophy may (like any other part of the candidate's worldview) influence his or her public policy decisions. In my view, it is relevant that a candidate has chosen spiritual mentors who are bigots or who are hostile to constitutional rights. Senator Obama's close relationship with Rev. Pfleger makes me less confident that a President Obama would be a strong defender of the entire Bill of Rights and of civic tolerance.

Oral Argument in DC v. Heller. The view from the Counsel Table:

On March 18, I joined the lawyers for Dick Heller at the counsel table for oral argument in District of Columbia v. Heller. The counsel table has four seats, and there were three lawyers representing Mr. Heller, so Alan Gura, the lead lawyer in the case, invited me to sit with them at the counsel table.

The practical function of the lawyers who are not presenting the oral argument is to write notes for the arguing lawyer, in case a tangential issue comes up. During the presentations by Walter Dellinger (for D.C.) and Paul Clement (for the Solicitor General) Justice Stevens asked questions which pointed out that of the Founding Era state constitutions, only two (Pennsylvania and Vermont) specifically mentioned self-defense as one of the purposes for the right to arms. So I gave Gura a note pointing out that courts in Massachusetts and North Carolina had interpreted their state constitution "for the common defence" language as an encompassing a right to arms for legitimate purposes, including defense against criminals. During Gura's presentation, Justice Stevens raised the point again, and Gura began to detail the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.

After oral argument in any case, it's always possible to think about how a particular answer could have been given better; but I think that Alan Gura did an excellent job. He was solid, well-informed, and persuasive.

Some observations from a first-timer in the Supreme Court:

The counsel table is quite near the bench. It's an interesting experience to see the Justices up close and personal, after having spent so many months trying to discern their modes of thought.

It is indeed awe-inspiring to hear the Marshal of the Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Before the argument, Walter Dellinger, a true Southern gentleman, came over to shake our hands. He graciously told Gura that Gura would do "great," and said that his own very first oral argument had been his best.

Also awe-inspiring are the Court's chambers, with a beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical characters personifying law-related virtues such as wisdom.

Based on the oral argument, it is possible to identify a few of the amicus briefs that were particularly influential. As Respondent, Gura would have been foolhardy to argue that the Court's leading precedent, United States v. Miller needed to be altered in any respect. That argument was instead in Nelson Lund's excellent brief for the Second Amendment Foundation, and was apparently adopted by Justice Kennedy.

Justice Kennedy's view that the militia clause of the Second Amendment emphasizes the importance of the militia, but does not limit the rights clause was supported not only by Gura's brief, but also by a careful textual analysis in the Lund brief, and by a strong historical presentation in the Academics for the Second Amendment brief, written by David Hardy and Joseph Olson.

Gura was asked at one point if there was any contemporaneous evidence indicating that self-defense was a purpose of the Second Amendment. He began by pointing to the 1787 Dissent from the Pennsylvania ratifying convention, which had urged that the proposed U.S. Constitution be amended to state: "That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."

Justice Souter retorted that the Pennsylvania Dissent was only concerned about the militia. Given the text of what the Pennsylvanians said, I find this view implausible; the better argument on D.C.'s side (made by, among others, Dennis Henigan of the Brady Center) seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have copied Pennsylvania's language, but he chose not to.

Nevertheless, Justice Souter seemed to have been persuaded by arguments in a historians' brief by Carl Bogus, which cited the law review scholarship about Pennsylvania by Nathan Kozuskanich. Kozuskanich was also cited in D.C.'s briefs, and in several of D.C.'s amicus briefs.

Michael Bane's Down Range TV has a collection of various lawyers, academics, and other Second Amendment advocates, discussing the oral argument. He also has a link to the oral argument audio. C-Span's Real Video coverage of the press conference after the brief (about 21 minutes, equally divided between the two sides) is here. A 15 minute iVoices.org podcast in which I'm interviewed about the oral argument is here.

For over a quarter-century, pro-Second Amendment lawyers such as Stephen Halbrook, Bob Dowlut, Don Kates, and David Hardy had dedicated their careers to making March 18, 2008, possible. Moreover, without the work of millions of pro-Second Amendment activists over the years, there would have been no chance of victory, however persuasive the evidence of original meaning might be. If the gun prohibition lobby had succeeded in its plans to use the 1976 D.C. ban to pass handgun bans in many cities and several states, it is doubtful that the Supreme Court would have the institutional will to strike down so many laws. And it also seems unlikely that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would have been willing to declare even the D.C. ban unconstitutional.

Yet while the work of millions of citizens made March 18 possible, it was Alan Gura who had to finish the job alone. Our young Skywalker performed magnificently, and I hope that by the Fourth of July, the law-abiding citizens of our nation's capital will once again enjoy their rights to own handguns, and to use firearms in defense of their homes and families.

Taiwan Presidential Election: Results and Process.

1. Election Results. The Nationalist Party (Kuomintang, KMT) presidential candidate Ma Ying-Jeou won a landslide victory today, defeating the Democratic Progressive Party candidate Frank Hsieh by 17% (58.5% to 41.5%). Ma won about 7.6 million votes, compared to 5.4 million for Hsieh. The results exceed even the election-eve expectations of the KMT, which was hoping that its internal polls showing a victory margin of about 11-13% would hold up.

Compared to the 2004 election (in which the DPP's margin of victory was only 0.22%), the KMT improved its performance in every Taiwan county by 7-10%, and won 20 of the 25 counties. (The only county where the KMT did not improve dramatically was Kinmen County, which consists of some small islands very near to China; a large percentage of the population of Kinmen County is military and their families, and the military has historically favored the KMT. The KMT got about 95% in Kinmen in both 2008 and 2008.) The only counties with the DPP won were a cluster in southwest Taiwan, the party's heartland.

The KMT and DPP positions on domestic policy were not greatly different, but the DPP nevertheless suffered from voter unrest about lower economic growth rates in recent years, in comparison to the rapid economic growth of not long ago. The parties have significant differences on international relations, particularly on how to deal with China, but both Ma and Hsieh are moderates within their parties. For further analysis of the policy implications of the election results, tune in next to a webcast of a TV program in which I interviewed a pair of Taiwanese political scientists. (Details later.)

The DPP also performed very poorly in the January elections for the legislature (Legislative Yuan), in part because a group of 11 DPP incumbents were defeated in primaries by hard-liners who could not carry swing districts. Nevertheless, because Hsieh is a moderate, there is a significant possibility that DPP's remaining moderates may be driven from leadership roles.

President-elect Ma will take office on May 20.

A pair of initiatives were also on the ballot, regarding Taiwan's membership in the UN. A DPP referendum asked if Taiwan should apply to join the UN under the name of "Taiwan." A KMT counter-initiative asked if Taiwan should apply to "rejoin" the UN under the name of "Republic of China" or "any other convenient name." Both initiatives received an overwhelming majority of votes cast, but neither passed, because the law states that no initiative will be valid unless 50% of eligible voters (not actual voters) vote on the initiative.

2. Election Process. The voting and vote-counting were a model of integrity, transparency, and efficiency. I observed voting at three north-central Taipei precincts: at St. John Bosco Catholic Church, and at a pair of precincts voting at National Taipei University.

Throughout Taiwan, voting was by paper ballot, with marked ballots placed into sealed ballot boxes. Photography during the voting process is forbidden, but is allowed while the ballot are being counted.

When the ballot box is opened, and vote-counting begins, each ballot is held up one-by-one, and the vote is announced. The vote-counting is open to the public, and is observed by party representatives, as well as other interested citizens.

Each vote is recorded on a tally sheet which is also visible. Each small box on the tally sheet holds a total of five votes, which are recorded one at time with hashmarks. The completed five-strokes of the hashmark form a Mandarin character which means "correct" or "upright."

After the last ballot is tallied, the empty ballot box is displayed for all to see.

The results are transmitted to a district election office, and then the district results are sent to the Central Election Commission, where results are displayed as fast as they are recorded.

The Central Election Commission's work (which was conducted in an auditorium at the National Police Academy) is open for everyone to watch, with the data processors located at the front of the room.

Between the time when we left our precinct after the votes were counted, and when we arrived at the Central Election Commission, about half an hour had elapsed. By then, the CEC was already displaying over half of the votes cast nationwide.

In a typical American general election, which may have dozens of races and issue votes, it would be very difficult to achieve such speedy results with hand-counting. Even so, the transparency of the Taiwan process inspires confidence and helps assure legitimacy.

As in any election, there are plenty of people who are disappointed with the result, and no one should minimize the difficulty of the challenge that President Ma will face in ensuring that when he leaves office in 2012 or 2016, Taiwan's freedom and sovereignty have not been eroded by its aggressive neighbor. But for now, all the people of Taiwan should be proud of their beautiful island of freedom, and their successful exercise of the inherent right of the sovereign people to chose their government.

Taiwan Election Coverage:

In about seven hours, the polls will open for Taiwan's presidential election. Incumbent President Chen Shui-Bian is term-limited, so the race is between Frank Hsieh, of the Democratic Progressive Party (the same party as Chen), and Ma Ying-Jeou, of the Kuomintang (Nationalist Party). The public release of polling information is forbidden in the days before the election, but many observers believe that Hsieh is rapidly closing a large gap in the polls.

An important factor working in Hsieh's favor is the rioting in Tibet, a reminder of China's brutal suppression of a formerly independent nation; although the Chinese government has renamed Tibet as the "Tibet Autonomous Region," Chinese treatment of the Tibetans ever since the Chinese conquest half a century ago serves as a reminder that the Chinese government's promises of autonomy are sometimes worthless.

Mr. Ma, the former mayor of Taiwan's capital city, Taipei, has proposed forming a common market with China, and his party, the KMT, is generally seen as more conciliatory to China than is the DPP. (However, DPP candidate Hsieh is seen as much less inclined than President Chen to push the envelope on China issues.)

As a result, Ma has made a point of taking a tough line on the Tibet issue. He contrasted Taiwan and Tibet by stating that unlike Tibet, Taiwan is "sovereign"--an indisputably accurate fact, although one with many appeasement-minded KMT members have been reluctant to say out loud. Further, he said that if Chinese government violence in Tibet continues, Taiwan might boycott the Beijing Olympics.

Over 200,000 Taiwan citizens living overseas have come home to vote in the election. The majority of these traveling voters are Taiwanese entrepreneurs and their families who live in China. One elderly man traveled 20 hours from Brazil to be able to vote.

The Taiwanese are very enthusiastic participants in their democracy, and, happily, the electorate seems less polarized than in the bitterly-contested 2004 election.

By Taiwanese law, all public rallies must end by 10 p.m. on the night before the election. A little bit ago, I attended the KMT's final pre-election rally in Taipei. Neither presidential candidate Ma Ying-Jeou nor his running mate Vincent Siew were at the rally, since both spent the day in campaigning in southern Taiwan. Below are some pictures from the rally. I didn't arrive in Taipei in time to attend the DPP's big rally there two nights ago; I wish I had, so that I could also post DPP photos.

VC readers will be pleased to know that both Hsieh and Ma have law degrees, and that Ma earned a LLM from Harvard.

These photos are taken from near the front of the rally; they don't convey the size of the crowd, which was huge, or the sounds of the loud and enthusiastic crowd.

The woman in the middle of the above picture (to the left of the man in the lavender shirt) had flown in from Los Angeles to vote.

The KMT is the leading party of the pan-blue coalition; while the DPP leads the pan-green coalition. Hence the DPP's campaign symbol of a bluebird. The flags, of course, are those of Republic of China, which is Taiwan's formal name.

Siew is on the left, Ma on the right.

Polls on handgun bans:

The Sunday Washington Post has an interesting collection of articles previewing Tuesday's oral argument in District of Columbia v. Heller, regarding whether DC's handgun ban and ban on home self-defense with any gun violate the Second Amendment. Among the articles is a poll on American attitudes towards gun ownership and the Second Amendment.

In the WaPo poll, 72% of respondents said that they considered the Second Amendment to be an individual right, not just for militia only. The is essentially identical to the most recent Gallup Poll (conducted Feb. 8-10, 2008) in which 73% of respondents said that the Second Amendment was an individual right, not limited only to militia.

The WaPo poll also asked "Would you support or oppose a law in your state that bans private handgun ownership and requires that rifles and shotguns kept in private homes be unloaded or have a trigger lock?" 59% said yes.

This is a surprising result, since it is strongly contrary other polling results. In the Gallup Poll, for example, you have to go back to 1965 to get plurality support for a handgun ban, and back to 1959 to find support comparable to the level report by WaPo.

Here's the Gallup question, and the results. "Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?"

2007. Oct 4-7. 30% should. 68% should not. 2% undecided.
2006. 32/66/2.
2005. 35/64/1.
2004. 36/63/1.
2003. 32/67/1.
2002. 32/65/3.
2000. 36/62/2.
1999. April. 38/59/3.
1999. Feb. 34/64/2.
1993. Dec. 39/60/1.
1993. March. 42/54/4.
1991. 43/53/4.
1990. 41/55/4.
1988. 37/59/4.
1987. 42/50/8.
1981. June. 41/54/5.
1981. April. 39/58/3.
1980. Dec. 38/51/11.
1980. Jan. 31/65/4.
1975. 41/55/4.
1965. 49/44/7.
1959. 60/36/4.

CBS/New York Times polls have asked "Would you favor or oppose a ban on the sale of all handguns, except those that are issued to law enforcement officers?" The CBS/NYT results are:

April 2007. 33% in favor. 64% opposed.
2000. 34/63.
1999. 43/53.
1994. 46/50.
1989. 40/55.
1981. 43/51.

I don't know why the WaPo results are so different from the others. Perhaps there was some effect from WaPo asking a compound question.

BTW, the issue in Heller is not the trigger lock requirement per se. It's that the there is no exception allowing the gun to be unlocked in a self-defense emergency; in the 1977 case of McIntosh v. Washington, the D.C. Court of Appeals upheld the home self-defense ban against challenges that it violated equal protection and the common law right of self-defense. The McIntosh court agreed with D.C's lawyers and recognized the statute as an absolute ban on home self-defense with any firearm; this was held to be rational because of the number of fatal gun accidents was (according to the McIntosh court) larger than the number justiable self-defense homicides with guns.

UPDATE: A reader has supplied some graphs of the trends in the NY Times and Gallup polls. If they're too small for you to read comfortably, click on the graph, and you'll get a bigger version.

American Constitution Society panel on DC v. Heller

Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel's office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available here.

DC v. Heller: Nathan Kozuskanich's selective reading of American History

In the Supreme Court's Second Amendment case District of Columbia v. Heller, DC and its amici frequently cited a then-forthcoming Rutgers L. Rev. article by Nipissing University assistant history professor Nathan Kozuskanich, a protégé of Saul Cornell. DC's reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.

A pair of new postings by Clayton Cramer analyze the J. Constl. L. article, and the Rutgers article. To call the articles "law office history" might be unfair to law offices.

Regarding the J. Const. L. article, Cramer explains how Kozuskanich's theory (that the right to arms in early Pennsylvania was only for collective defense of the state) depends on ignoring other evidence, and on strained, implausible readings of the evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of Dr. James Reynolds for "assault with intent to commit murder." Kozuskanich claims that the prosecution proves that Pennsylvania's constitutional right to arms did not apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with a crime for his mere carrying of the pistol; he was charged with a crime because he pointed the pistol and threatened to shoot someone. The book American State Trials observes that Reynolds "contented himself with carrying a pistol. And in this he was justified by every law, human and divine." Certainly no-one at the trial contended otherwise; so Kozuskanich's claim that the prosecution for attempted homicide proves that there was no individual right to own and carry guns is implausible.

The prosecution's theory of the case was that Dr. Reynolds, who was in a public place, could have safely retreated from threatening mob, and that Blackstone's standards for self-defense require such retreat. The jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of the split between the more restrictive British standards of self-defense, and the new, more liberal American standards. That conflict on self-defense standards continues to the present day. But arguments about the boundaries of self-defense (such as whether there is a duty to retreat if possible) certainly do not disprove the existence of a constitutional right of individuals to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in an article in the Georgetown Journal of Law and Public Policy offer numerous examples of Founding Era usage of "bear arms" to mean carrying guns in a non-military setting. Tellingly, Kozuskanich simply ignores the Olson/Cramer evidence, for that evidence demolishes Kozuskanich's theory.

Cramer's critique of the Rutgers article observes that Kozuskanich actually cites Michael Bellesiles, who was forced to resign from Emory after the proof (brought forward by Clayton Cramer, James Lindgren, and others) that Bellesiles had falsified his data, including his data on the very point for which Kozuskanich cites him (the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776 guaranteed "That the people have a right to bear arms for the defence of themselves and the state." The opening language, "That the people have a right", was identical to Articles X, XII, and XVI, which guaranteed the individual rights to freedom from unreasonable search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania Convention's debates on Article VIII of the Constitution--affirming that everyone is bound to serve in the militia, or pay "an equivalent thereto" (that is, a fee whereby conscientious objectors could be excused from serving personally). Kozuskanich claims that the Article VIII debates prove that there was no individual right to arms for self-defense. As Cramer notes, this is silly. The Article VIII debates were not, of course, about an individual right, which was the subject of a separate article; the Article VIII debates involved the scope of a duty.

Kozuskanich's approach to Pennsylvania is similar to the approach that his mentor, Prof. Cornell, uses for St. George Tucker (the leading constitutional scholar of the Early Republic): quote Tucker's words about congressional militia powers arising from Article I of the federal Constitution, and claim that those words prove that the Second Amendment does not involve arms for personal defense. (For more on this latter point, see Stephen Halbrook's article in the Tenn. J. L. & Pol.

Larry Tribe's flip-flop in DC v. Heller

Last May, after the D.C. Circuit Court of Appeals ruled in District of Columbia v. Heller that the D.C. handgun ban violates the Second Amendment, Harvard Law School Professor Larry Tribe was contacted, and asked if he would like to write an amicus brief in support of Heller. Tribe wrote back to Heller's attorneys that he did not want to do an amicus brief, but he would be interested in exploring his playing a "more central role" in the case. Tribe urged that he could be effective with the center and left-of-center Justices.

The only "more central role" than that of amicus-writer is that of co-counsel for Respondent. And, obviously, the only position of a counsel for Respondent would be in favor of affirmance of the favorable judgment below. Of course a counsel might offer a different theory for why the decision should be affirmed.

Today in the Wall Street Journal, Professor Tribe penned an op-ed urging that the decision of the Court of Appeals be reversed; he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."

Professor Tribe has the right to change his mind, but the air of forceful certainty with which he today argues for reversal seems inconsistent with his unrequited offer from ten months ago to play a "more central role" in securing affirmance.