Kopel weblog 2006 Archive, Jan. 1 through Oct. 2

October 2, 2006 at 1:16pm]

Congress outlaws gun confiscation during disasters or emergencies:

This weekend, Congress passed, and sent to the President for his signature, the Homeland Security appropriations bill, H.R. 5441. The Conference Report of the bill includes a variety of non-appropriations measures to enhance homeland security. The most notable of these is the construction 700 miles of fence along the portions of the Mexican border which are the main transit zones for illegal aliens. Also included in the legislation is a ban on gun confiscation during emergencies and natural disasters, to prevent a repeat of the post-Katrina abuses such as law enforcement officers breaking into homes and confiscating firearms from law-abiding citizens.

The new legislation is a modified version of H.R. 5013, by Louisiana Representative Bobby Jindal, which overwhelmingly passed the House in July, and which I wrote about here.

The full text is below, preceded by my summary.

Summary: (a). The bill applies to all law enforcement, including state and local. (Formally, it applies to federal law enforcement, plus anyone receiving federal funds or assisting federal law enforcement. In a disaster, this means almost everyone.) It bans gun confiscation, gun registration, and restrictions on where a firearm may be possessed; confiscation, registration, and restrictions pursuant to existing laws are still allowed. People who are assisting federal disaster relief, and who are allowed to carry firearms under existing law, may not be forbidden to do so.
(b) When mass transit is being used for evacuation (e.g., busses out of New Orleans), passengers can be required to surrender their firearms for the duration of the trip, and then reclaim the firearms when the trip is over.
(c) A person victimized by a violation of this law can sue in federal district court; a prevailing plaintiff will be awarded attorney fees.

SEC. 557. Title VII of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5201) is amended by adding at the end the following:

‘‘SEC. 706. FIREARMS POLICIES.
‘‘(a) PROHIBITION ON CONFISCATION OF FIREARMS.—
No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
‘‘(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
‘‘(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
‘‘(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
‘‘(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
‘‘(b) LIMITATION.—Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
‘‘(c) PRIVATE RIGHTS OF ACTION.—
‘‘(1) IN GENERAL.—Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.
‘‘(2) REMEDIES.—In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
‘‘(3) ATTORNEY FEES.—In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.’’.

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September 26, 2006 at 3:10pm] 1 Trackbacks / Possibly More Trackbacks

Gun Control: Does the UN Protect Women’s Rights?

In a new article on ChronWatch, Howard Nemerov recounts some of the atrocities of sexual abuse perpetrated by UN "peacekeepers" against women. He also reports how some women in Liberia have joined rebel groups in order to obtain firearms to protect themselves from sexual assault.

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September 13, 2006 at 6:29pm] 1 Trackbacks Possibly More Trackbacks

UN's New Attack on Law-Abiding American Gun Owners:

Advanced Topics in Human Rights Law. Exam, Spring 2010. Question 4: One day, a woman goes to a gun store in Florida. She provides picture identification to the store owner, who then, pursuant to the National Instant Check System, uses his telephone to contact law enforcement, and ensure that the woman has no criminal record. The woman then purchases an expensive double-barreled shotgun, manufactured in the United Kingdom. She plans to use the gun for all lawful purposes, but primarily for sporting clays. In accordance with Florida law, she did not need to obtain a government license to possess the gun.

Two years later, a man breaks into her home at night. The woman reasonably (and correctly) believes that the man intends to rape and torture her. She also, correctly, believes that there is absolutely no possibility that the man will kill her. She shoots the man and kills him.

Summarize the human rights violations

Answer:

1. The United Kingdom violated human rights by allowing the export of small arms to the United States for retail sale, under conditions which the U.K. knew (or through due diligence should have known) made it likely that the arms would be used to violate human rights. The Arms Trade Treaty was proposed in the fall of 2006 in the United Nations General Assembly by Australia, Argentina, Costa Rica, Finland, Japan, Kenya and the United Kingdom. Those nations, and many others, later ratified the treaty. The treaty makes it illegal to export small arms to a nation when it is likely that the arms will be used to violate human rights.

Almost all of the public discussion of the ATT focused on violations of "traditional" human rights — such as selling arms to the Burmese police, some which would be used to murder peaceful dissidents. However, the text of the ATT applies to all human rights violations, include newer human rights. The U.K. knew or should have known that its export of arms to the civilian market in the U.S. would lead to the human rights violations detailed below.

2. The United States and the State of Florida violated human rights by allowing the woman to possess a firearm without a license. The July 27, 2006, Final Report of the United Nations Special Rapporteur on the use of small arms in human rights violation stated:

16. Minimum effective measures that States should adopt to prevent small arms violence, then, must go beyond mere criminalization of acts of armed violence. Under the principle of due diligence, it is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them....The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons. These licensing criteria are not insurmountable barriers to legitimate civilian possession. There is broad international consensus around the principle that the laws and procedures governing the possession of small arms by civilians should remain the fundamental prerogative of individual States. While regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations - there is in fact almost universal consensus on the need for reasonable minimum standards for national legislation to license civilian possession in order to promote public safety and protect human rights. This consensus is a factor to be considered by human rights mechanisms in weighing the affirmative responsibilities of States to prevent core human rights violations in cases involving private sector gun violence.
Neither Florida nor the United States require a license to possess a gun. Nor did either government require any "proof" that the woman had "a legitimate purpose for obtaining a weapon." Notably, even if the woman had lived in an American state or city with more restrictive laws, there still would have been a human rights violation. Only a minority of jurisdictions have licensing system, and of those, many require a license only for hand guns (not long guns), and require a license only for purchase — rather than a license for continuing possession, which must be periodically renewed. Notably, even the most restrictive jurisdictions (e.g., New York City for handguns) do not require a purchaser to prove that she has a legitimate purpose. Hence, any export of firearms for civilian sale to the U.S. is per se human rights violation.

On August 21, 2006, the UN Human Right Council's Subcommission on the Promotion and Protection of Human Rights endorsed the Frey Report in toto, and recommended that the full Human Rights Council do so. The HRC later did so.

Although the Arms Trade Treaty has been signed by President Clinton, it has never been brought to the Senate floor for ratification. However, the ATT, as well as the decisions of the HRC, are relevant guides to the interpretation of U.S. and Florida constitutional provisions, including those which forbid the deprivation of life without due process. The principle that unratified treaties (such as the Convention for the Elimination of All Forms of Discrimination Against Women), or treaties to which the United States could not even be a party (such the African Charter on the Rights and Welfare of the Child) may be used in interpreting the human rights provisions of the U.S. Constitution is well-established by Supreme Court precedent. Significantly, the ATT and the HRC standards on gun control have been endorsed by several international bodies, as well as international organizations concerned with human rights, including Amnesty International, the World Council of Churches, and the International Action Network on Small Arms.

3. Finally, the woman's use of gun violence against the man was also a human rights violation. This gun violence was also accountable as a human rights violation by the State of Florida. According to the Frey Standards adopted by the UN Human Rights Council, self-defense is not a human right. Rather, "When small arms and light weapons are used for self-defence, for instance, unless the action was necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-defence will not alleviate responsibility for violating another’s right to life." (Para. 26). Moreover, "Because of the lethal nature of these weapons and the jus cogens human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged." Under international law, a jus cogens standard supersedes any contrary rule. The constitutions of the United States and of Florida, as well as numerous human rights treaties ratified by the United States, recognize the government's obligation not to take life unjustifiably. As the Frey Report details, a government's failure to enact sufficiently stringent gun control laws (discussed in item 2, above) and to enact sufficiently stringent restrictions on self-defense constitute a governmental failure to exercise due diligence, and consequently a violation of the right to life.

The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture, and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. The use of deadly force against an attack which is not life-threatening is plainly disproportionate, and a violation of the HRC standards.

Florida--like many other American states--compounds its human rights violation by not requiring that the defender use less-than-deadly-force if lesser force would sufficient to stop the violent felony.

Extra credit: Although the law regarding private suits for human rights violations is still evolving, the estate or relatives of the man who was the gun violence victim might have a cause of action in a U.K. or European Court to sue the firearms manufacturer, and also to sue the United Kingdom itself. Further, the estate/relatives of the gun violence victim could sue the State of Florida, and the United States, for violating his right to life. The suit would be based on section 1983 of the Civil Rights Act, which encompasses private lawsuits for the deprivation of federal civil rights, including the right not to be deprived of life without due process. The American court, following the lead of the U.S. Supreme Court, could use international law standards, such as the HRC standards, in determining the scope of a government's duty regarding the right to life.

The federal Protection of Lawful Commerce in Firearms Act, and its Florida analogue, prohibit a lawsuit against the manufacturer, wholesaler, and retailer of the shotgun. Florida law prohibits a lawsuit against the gun violence perpetrator, because the perpetrator was acting within the scope of Florida self-defense law when she shot the victim. However, the estate/relatives could argue the all the statutes mentioned in this paragraph are unconstitutional, because the are contrary to the right to life guaranteed by the federal due process clause, as informed by the evolving standards of international human rights, as defined by the UN Human Rights Commission.

As the Frey/HRC observed, the "regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations." If the victim's human rights lawsuit were brought before a judge who was sympathetic to such manufacturers or organizations, it is unlikely that the suit would succeed. However, there are many judges who do not have such sympathies. Thanks to the flexibility of international law, and the evolving practice in U.S. constitutional interpretation of using international law guidelines, it would be possible for the lawsuits to result not only in monetary damages, but also in injunctive relief, and the judicial negation of the state and federal laws on self-defense and gun control which violate international human rights.

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[David Kopel, September 12, 2006 at 6:01pm] 0 Trackbacks Possibly More Trackbacks

Taiwan's Right to Representation in the United Nations

Today the United Nations General Assembly convenes in its 61st session. Unfortunately, the legitimacy of the General Assembly, and of the United Nations itself, is undermined by the exclusion of the free, democratic, and independent nation of Taiwan from membership--in contravention of the UN Charter.

It might seem futile even to raise the issue of Taiwan's exclusion, since China is adamant that Taiwan will never be admitted to the United Nations. But even though a great power may persist for decades in trying to block the admission of an independent state to the UN, diplomatic circumstances and priorities can change, over time — as was demonstrated, for example, by the awarding of the China seat to the Mao regime in 1971 (following decades of U.S. opposition). In any case, it is important for the public and the diplomatic community to recognize the illegitimacy of Taiwan being denied its rightful place in the United Nations.

The UN Charter, article 4, states that "Membership in the United Nations is open to all other [non-founding] peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." Taiwan is indisputably a "peace-loving" state — in marked contrast to China, which not only makes threats against Taiwan, but supplies arms and financial support to warlords, dictators, and genocidaires around the world, including in Sudan.

Since Taiwan is "peace-loving," it is necessarily entitled to UN membership, according to the UN Charter, as long as Taiwan is a "state" that is capable of carrying out various UN obligations. Plainly Taiwan is such a state.

Taiwan is self-governing. Indeed, Taiwan exercises far more complete self-government than has been exercised by some UN member states — such as Lebanon during its period of colonization by Syria, or the Warsaw Pact nations during the period of Soviet hegemony.

Taiwan encompasses a well-defined territory, consisting of the island of Taiwan itself, plus dozens of smaller islands in the Taiwan Strait, the most important of which are the Pescadores. In contrast, some UN member states (such as India and Pakistan) have disputed or unresolved borders.

Taiwan's government is sovereign over its entire territory. Again, some UN member states do not exercise full sovereignty over their nominal territories; for example, Pakistan has only limited control over the northwest frontier province and the federally administered tribal areas. Likewise, Lebanon's government is far from fully sovereign in southern Lebanon.

In addition, Taiwan's population of over 23 million is larger than most UN member states. Taiwan has developed a republican form of government, and achieved a very good record on human rights — putting Taiwan far ahead of scores of UN member states, and much closer to full compliance with the founding ideals of the United Nations, as well as the many UN human rights treaties and declarations.

As the Declaration of Independence explains, self-government is the foundation of legitimate sovereignty; accordingly, Taiwan's current democratically-elected government exercises a legitimate sovereignty which is not possessed by the dictatorship in China nor by the dozens of other dictatorships which have UN delegations.

Taiwan clearly fulfills the four criteria of de facto statehood, as articulated in Article 1 of the 1933 Montevideo Convention: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." Notably, even if China succeeded in convincing every country in the world to terminate formal diplomatic recognition of Taiwan, Taiwan would still, legally, be an independent state; as Montevideo's article 4 declares: "The political existence of the state is independent of recognition by the other states."

In 1971, the United Nations gave the China seat at the UN to the Mao Zedong dynasty, the seat having formerly been held by the Chiang Kai-shek dictatorship. The UN's decision was reasonable: the Chiang regime had lost the Chinese civil war in 1949, and, although the regime still made a nominal but ridiculous claim to rule China, it was clear in 1971 that for the last 22 years, the sovereign in China had been Mao, not Chiang, and there was no prospect of that situation changing. Resolution 2758 addressed solely the question of which regime was entitled to hold the "China" seat, and did not purport to resolve anything regarding Taiwan's independence.

The Mao dynasty in China has, since 1949, claimed sovereignty over Taiwan, but never has actually exercised a shred of sovereignty. Fifty-seven years of actual independence is more than sufficient for the Taiwan to deserve recognition as an independent state.

In terms of the right to admission to the United Nations, all that matters is Taiwan's status now as an independent, peace-loving state. Even if Taiwan had been part of China for 3,500 years, the most recent 57 years of independence entitle Taiwan to UN membership. However, it should be noted that the historical and international law record is more supportive of Taiwan's independence than of China's claim to sovereignty over Taiwan.

The history of Chinese government is very old, dating back to the Shang dynasty in the middle of the second millennium BC. Many Chinese dynasties rose and fell in the following centuries — but not until three thousand years later did any government on the continent of Asia claim to rule even a portion of the island of Taiwan. (However, the Quemoy Islands, which are very close to the Chinese coast, and which are currently ruled by the Taipei government, were historically part of China.) In 1683, China's government did establish some control over western Taiwan, and this control lasted for two centuries. For almost all of this period, the Chinese explicitly denied that they were sovereign over eastern Taiwan. One purpose of the denial was to avoid taking responsibility for the pirates who operated from eastern ports; and the Chinese's government's inability to suppress the pirates is one indication that China was correct in claiming not to exercise sovereignty in the east.

Only for 17 years (some other historians say 8 years) in the late 19th century did China actually declare sovereignty over all of Taiwan. This is trivially short period in the scope of Taiwanese and Chinese history.

Significantly, China renounced any claim to sovereignty over Taiwan, in the 1895 Treaty of Shimonoseki, and Taiwan was ceded to Japan. Japan ruled the entire island of Taiwan from 1895 to 1945 — that is, three times as long a China ruled the entire island. Ever since the sixteenth century, Japan had claimed sovereignty over eastern Taiwan. Thus, Japan's claim of sovereignty over one side of the island is actually two centuries longer and more senior than China's claim of sovereignty over the other side. Today, we would hardly claim that Japan's historical record of sovereignty over Taiwan entitles Japan to rule Taiwan against its will; a fortiori, the weaker record of Chinese sovereignty cannot give China a right to rule Taiwan against its will.

In the 1951 San Francisco Peace Treaty, which formally ended World War II, and the 1952 Treaty of Taipei (between Japan and Taiwan), Japan renounced all claims to Taiwan. Significantly, neither treaty stated that Taiwan was now part of China.

In the unsigned 1943 Cairo Declaration, Roosevelt, Churchill, and Chiang stated that "Manchuria, Formosa [Taiwan's Japanese name], and the Pescadores, shall be restored to the Republic of China." Although it is doubtful that Cairo created binding international law, the literal effect of the language is consistent with Taiwan's current, independent existence as the "Republic of China," and inconsistent with Taiwan being subsumed into the "People's Republic of China"; certainly the Communist tyranny which Mao hoped to establish was not an intended beneficiary of the Cairo Declaration. To the contrary, the intent of the parties of the Cairo Declaration would be to construe each and every word against a Mao regime and its successors. The Cairo Declaration is also referenced in the Potsdam Declaration.

The fact that China persists in a claim of sovereignty of Taiwan, and sometimes makes military threats, cannot be considered a proper reason for denying UN membership to Taiwan. After all, North Korea and South Korea were each admitted to the UN, even though the North Korean tyranny claims sovereignty over South Korea, and legally remains in a state of war with South Korea. (The Korean War was ended by an armistice, which was executed in the expectation that a peace treaty would be negotiated later, but there has been no such treaty.)

During a 1998 visit to China, President Clinton said that he opposed admitting Taiwan to the United Nations. The U.S. House of Representatives promptly rebuked him, voting 390-1 for a Resolution (H. Con. Res. 301) by which Congress "affirms its strong support, in accordance with the spirit of the Taiwan Relations Act, of appropriate membership for Taiwan in international financial institutions and other international organizations."

Rather than kowtowing to the Chinese dictatorship, all freedom-loving nations and peoples should stand in support of Taiwan's right to self-determination and to membership in the United Nations.

Further reading: Parris Chang & Kok-ui Lim, "Taiwan's Case for United Nations Membership," UCLA Journal of International Law and Foreign Affairs(1997).

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September 4, 2006 at 11:26pm] 0 Trackbacks Possibly More Trackbacks

Jewish Boxing, Fencing, and Self-Defense

A recent post on David Hardy's fine weblog, Of Arms & the Law, discusses the great English Jewish boxer Daniel Mendoza. So I thought I would add what I know about Jewish boxing, along with a bonus paragraph on Jewish fencing.

Beginning in 1760, British Jews began to participate in the sport of boxing. The English champion from 1791-95 was Daniel Mendoza, whose innovative technique relied on speed and skill rather than pure force.

As the political reformer Francis Place explained, before Mendoza:

Dogs could not be used in the streets in the manner many Jews were treated. One circumstance among others put an end to the ill-usage of Jews....[Mendoza became famous and set up a boxing school for young Jews.] The consequence was in a very few years seen and felt too. It was no longer safe to insult a Jew unless he was an old man and alone....But even if the Jews were unable to defend themselves, the few who would now be disposed to insult them merely because they are Jews, would be in danger of chastisement from passers-by and of punishment from the police.
Thus, when Jews began to defend themselves, they demonstrated that they were worthy of being defended-—and so good-hearted gentiles also began to defend Jews.

In the 1920s in the United States, Jews were the major ethnic group engaged in professional boxing—-mainly for the same economic reasons that many low-income groups gravitate towards boxing. Jews remained prominent in the 1930s, after which Jewish participation waned as Jews climbed the socio-economic ladder, and found easier ways to make a living.

In the Jewish boxers, one could see what historian Irving Howe called the "New Jewish Character," which was "active, not passive, subject, not object, erect, not bowed, combative, not acquiescent."

The first American boxer to play a prominent role in public affairs was Barney Ross, who won the lightweight, junior welterweight, and welterweight championships. He retired from boxing in 1938, enlisted in the army after Pearl Harbor, and was wounded at Guadalcanal, earning a Silver Star for rescuing soldiers from a Japanese ambush. After returning to the United States, Ross played a very public role in Zionist groups pressuring the American government to help Jewish refugees, and recruiting Americans to assist the Irgun (Menachem Begin’s fighting group in British Palestine).

In 1915, Louis Brandeis explained how Zionism was reforming the Jewish character, so that Jews would fight for their rights, rather than submitting to anti-Semitism:

[Zionism’s] effect upon the Jewish students of Austrian universities was immediate and striking. Until then they had been despised and ill-treated. They had wormed their way into appointments and into free professions by dint of pliancy, mock humility, mental acuteness, and clandestine protection. If struck or spat upon by "Aryan" students, they rarely ventured to return the blow or insult. But Zionism gave them courage. They formed associations, and learned athletic drill and fencing…..[P]resently the best fencers of the German fighting corps found that Zionist students could gash cheeks quite as effectually as any Teuton, and that Jews were in a fair way to become the best swordsmen of the university. Today the purple cap of the Zionist is as respected as any academic association.
Sources: Allen Bodner, When Boxing Was a Jewish Sport(Westport, Conn.: Praeger, 1997).

Irving Howe, Introduction to The Legacy of Jewish Migration, ed., David Berger (N.Y.: Holt, Rinehart & Winston, 1983), p. 28.

Louis D. Brandeis, Brandeis on Zionism: A Collection of Addresses and Statements by Louis D. Brandeis(Union, N.J.: The Lawbook Exchange, 1999)(1st pub. 1942), p. 32 (June 1915 speech, "The Jewish Problem and How to Solve It").

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August 24, 2006 at 2:43am] 0 Trackbacks /

Colorado Governor's Race:

The race for governor in the purple state of Colorado features Democrat Bill Ritter (former D.A. of Denver) versus Republican Bob Beauprez (U.S. Rep. of the 7th C.D., south and east of Denver). According to the Denver Post, Ritter recently told a meeting of "several members of the state's business elite" that he agreed with 38 of Owens' 47 vetoes in 2005. Award-winning political columnist (and retired 22-year legislator, and my father) Jerry Kopel calls on Ritter to disclose to everyone which bills he would vetoed. My father also urges the state legislature's Democratic leadership to "talk some sense into him about how far he can go in losing the Democratic base and alienating Democratic legislators or nominees in order to ensure funding from the 'business elite'."

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August 23, 2006 at 3:29pm] 0 Trackbacks / Possibly More Trackbacks

War on Drugs versus War on Terrorists:

During the recent war against Israel, Hezbollah used night vision equipment which had been supplied by Iran, as detailed in a new article by the Jewish Institute of National Security Affairs. Iran had obtained the equipment from the United Kingdom to "bolster Iranian efforts to combat heroin smuggling across the Afghan border as part of the UN Drug Control Program." The U.K. was extremely foolish to expect the Iranian tyrants to keep their promises not to divert the equipment to military use.

This is far from the only example of how excessive zeal in the drug war undermines the national security interest of democracies. A similar problem is evident in Latin America, as Mike Krause and I wrote in "A Foreign Policy Disaster," a chapter in the book The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004).

Related Posts (on one page):
  1. The War on Drugs vs. The War on Terror
  2. War on Drugs versus War on Terrorists:
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August 15, 2006 at 7:36pm] 0 Trackbacks / Possibly More Trackbacks

Colorado Shakespeare Festival 2006:

Do you want to be happy, or do you want to think deep thoughts? At this summer’s Colorado Shakespeare Festival, at the University of Colorado at Boulder, you can do both, although not on the same night.

If you want to laugh, then see As You Like It, a comedy for the CSF seems to have a particular talent. The previous CSF production of As You Like It, in 2001, was sparkling and wonderful, and so is this version, but in a very different way.

This time around, As You Like It is turned into a “screwball comedy.” The screwball comedy, which was especially popular in the late 1930s and early 1940s, was based on the comic juxtaposition of opposites – rich vs. poor, urban vs. rural, and male versus female. In As You Like It, the heroes, having been betrayed by their older relatives, flee to the Forest of Arden. In the Boulder production, the forest is the rural south of the 1930s.

The male hero of the screwball comedy is often good-hearted, simple, and naïve, while the female is a wily, deceitful fast-talker. The improbable film plots succeed on the strength of excellent leads and their witty dialogue.

Director Gavin Cameron-Webb transforms As You Like It into screwball mode so seamlessly that one almost believes that the play was originally written screwball-style. Particularly excellent as sharp-tongued cynical dames are Rosalind’s cousin Celia (Elgin Kelly) and Phebe the hard-hearted country girl (Laura Montes)—two broads with broad gestures, wide swings in their voices, and comically expressive faces.

The males are well-played and solid, although none of them rises to, say, the heights of Gary Cooper in Mr. Deeds Goes to Town(1936).

The only really false note is struck by Duke Senior, as the hobo leader who is the exiled brother of Duke Frederick. He often played with a yo-yo during his speeches, but the action seemed contrived rather than zany.

Hobos with yo-yos notwithstanding, most of the other elements from the 1930s fit together smoothly: the wrestler with the Brooklyn accent who would be “loathe ta hoit 'im,” the singing telegram, the Woody Guthrie music, the square dance finale, and, especially, the characters at the urban costume party dressed as Flash Gordon, Ming the Merciless, Scarlett O’Hara, the Mummy, and other 1930s movie characters.

Another play involving an exiled brother, The Tempest, is also excellent, in its own dark and disturbing way. The story begins with Prospero and his young adult daughter Miranda, who for almost two decades have been exiled on a Mediterranean island by Prospero’s usurping brother, who took over the duchy of Milan. During the years on the island, Prospero has learned magic and acquired a collection of ethereal servants, led by Ariel. He also rules over a monstrous slave named Caliban.

Prospero discovers that a ship carrying his wicked brother, as well as the wicked king of Naples (who had helped the usurpation plot) are coming nearby; Prospero uses magic to cause a shipwreck, and most of the play involves several shipwrecked parties who wander the island.

The performances and staging evoke, at various times, Heart of Darkness, Lord of the Flies, The Hulk, and Lost—works which followed The Tempest in exploring the dark-hearted monster that is part of human nature—a monster sometimes revealed more vividly in the wilderness, but always present in “civilization” too.

Caliban is the overt monster—enslaved because he once attempted to rape Miranda, after she befriended and tutored him. The Neapolitan and Milanese rulers and courtiers are better-dressed than brutish Caliban, but even more monstrous, betraying families and each other.

Almost all the characters in the play undergo a transformation. The leading exceptions are Prospero’s beautiful daughter Miranda (the charming Tara McMullen) and her beloved, handsome Prince Ferdinand, who both remain guileless and pure.

The biggest transformation is Prospero’s. A Freudian avant la lettre, he re-enacts the central trauma of his life (the usurpation of his dukedom), and this time ensures a happy ending—defeating a pair of drunken, cruel sailors whom he has entrapped in a plot to usurp his little island kingdom. After exacting some revenge and teaching a few lessons to the shipwrecked characters, Prospero abjures magic, frees the spirit Ariel (thereby liberating his own spirit), emancipates Caliban, reconciles with his brother, and prepares to return to civilization.

Having grown up without knowing any human other than her father, Miranda sees the shipwrecked men, and exclaims “Oh brave new world, that hath such people in it!” Her naïve excitement evokes laughter from the audience, but the line also reminds us of the new word that has been created by the reconciliation of Prospero and his enemies (and also by the solution of other conflicts in the subplots), when reformed men stop acting like monsters.

Yet in the brave new world created by mercy, Prospero remains a rather dour fellow. After all, character is built over the years, and, although a person can change his intentions, changing one’s disposition is takes time.

Both of The Tempest and As You Like It are performed at the beautiful outdoor Mary Rippon Theatre at the University of Colorado, with a stage flanked by evergreens, and the night sky sometimes adding commentary to the show. The Tempest benefits most from the setting, as the sparse set blends into the outdoors to create scenes of magical otherworldiness.

As You Like It, ostensibly set in a forest, keeps so much attention on the characters’ madcap physicalizations that the play would work equally well indoors. The CSF finishes its season with performances every night this week, through Saturday night.

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August 14, 2006 at 11:36pm] 0 Trackbacks / Possibly More Trackbacks

Celebrate Diversity with Hezbollah:

Denver blogger Joshua Sharf (View from a Heights) notes a Denver Post report of an anti-Israel rally in Denver last Saturday: "Mixed messages ranging from steadfast nonviolence to support for Hezbollah 'show the diversity' of a new organization called the Front Range Coalition for Justice and Peace in the Middle East, said Imam Ibrahim Kazerooni, a leader of interfaith efforts at St. John's Cathedral."

Sharf writes:

I hadn't realized that tolerance for, indeed applause for, Ahmedinejad's willing executioners was included in the definition of "interfaith efforts."

...A well-organized rally would have had marshals controlling the message a little bit. The quote to the paper would have been about how his "movement" had no place for the sort of hatred that Nasrallah represents, blah blah blah. But Kazerooni couldn't even bring himself to say that.

Kazerooni knows what Hezbollah and Nasrallah are. He knows perfectly well that Nasrallah, too, has said he's looking forward to the ingathering of the Jewish exiles, all the easier to kill them. He's also a professional at PR, so he knows how to stay on message when he wants to. And in this case, the message was, "we'll take all comers, even if they're experimenting with Zyklon B in their back yards."

He's not anti-war, he's just on the other side.


Kazerooni came to Colorado after fleeing persecution under Saddam Hussein, but it hard so respect his current tolerance a group that would impose its own tyranny on Lebanon.

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[David Kopel, August 7, 2006 at 3:14am] 0 Trackbacks Possibly More Trackbacks

President Kennedy's Words on Cuba

Speaking to the American public about the Cuban Missile Crisis on October 22, 1962, President Kennedy concluded with some words which are still relevant:
Finally, I want to say a few words to the captive people of Cuba to whom this speech is being directly carried by special radio facilities.

I speak to you as a friend, as one who knows of your deep attachment to your fatherland, as one who shares your aspirations for liberty and justice for all.

And I have watched and the American people have watched with deep sorrow how your nationalist revolution was betrayed and how your fatherland fell under foreign domination.

Now your leaders are no longer Cuban leaders inspired by Cuban ideals. They are puppets and agents of an international conspiracy which has turned Cuba against your friends and neighbors in the Americas...

But this country has no wish to cause you to suffer or to impose any system upon you. We know that your lives and land are being used as pawns by those who deny your freedom. Many times in the past the Cuban people have risen to throw out tyrants who destroyed their liberty.

And I have no doubt that most Cubans today look forward to the time when they will be truly free, free from foreign domination, free to choose their own leaders, free to select their own system, free to own their own land, free to speak and write and worship without fear or degradation.

And then shall Cuba be welcomed back to the society of free nations and to the associations of this hemisphere.

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August 5, 2006 at 1:53am] 0 Trackbacks / Possibly More Trackbacks

Never Again

Israeli journalist Ben Caspit, who writes commentary for the daily newspaper Ma'ariv (and who, in early 2006, was criticized by some as an apologist for Ariel Sharon's plans to withdraw from most of the West Bank/Judea/Samaria) has penned a speech which he thinks that Israel's Prime Minister should give:

Ladies and gentlemen, leaders of the world. I, the Prime Minister of Israel, am speaking to you from Jerusalem in the face of the terrible pictures from Kfar Kana. Any human heart, wherever it is, must sicken and recoil at the sight of such pictures....Still, I am looking you straight in the eye and telling you that the State of Israel will continue its military campaign in Lebanon....

We will not hesitate, we will not apologize and we will not back off. If they continue to launch missiles into Israel from Kfar Kana, we will continue to bomb Kfar Kana. Today, tomorrow and the day after tomorrow. Here, there and everywhere. The children of Kfar Kana could now be sleeping peacefully in their homes, unmolested, had the agents of the devil not taken over their land and turned the lives of our children into hell.

Ladies and gentlemen, it’s time you understood: the Jewish state will no longer be trampled upon. We will no longer allow anyone to exploit population centers in order to bomb our citizens. No one will be able to hide anymore behind women and children in order to kill our women and children....

Today I am serving as the voice of six million bombarded Israeli citizens who serve as the voice of six million murdered Jews....In both cases, those responsible for these evil acts were, and are, barbarians devoid of all humanity, who set themselves one simple goal: to wipe the Jewish race off the face of the earth, as Adolph Hitler said, or to wipe the State of Israel off the map, as Mahmoud Ahmadinejad proclaims.

And you - just as you did not take those words seriously then, you are ignoring them again now. And that, ladies and gentlemen, leaders of the world, will not happen again....Never again will we wait for salvation that never arrives. Now we have our own air force. The Jewish people are now capable of standing up to those who seek their destruction - those people will no longer be able to hide behind women and children. They will no longer be able to evade their responsibility.

Every place from which a Katyusha is fired into the State of Israel will be a legitimate target for us to attack. This must be stated clearly and publicly, once and for all. You are welcome to judge us, to ostracize us, to boycott us and to vilify us. But to kill us? Absolutely not.

Four months ago I was elected by hundreds of thousands of citizens to the office of Prime Minister of the government of Israel, on the basis of my plan for unilaterally withdrawing from 90 percent of the areas of Judea and Samaria...

The Prime Minister who preceded me, Ariel Sharon, made a full withdrawal from the Gaza Strip...The Prime Minister who preceded him, Ehud Barak, ended the lengthy Israeli presence in Lebanon....

What did the State of Israel get in exchange for all of this?...Ehud Barak's peace initiative at Camp David let loose on us a wave of suicide bombers who smashed and blew to pieces over 1,000 citizens, men, women and children. I don't remember you being so enraged then....

We do not dance on the roofs at the sight of the bodies of our enemy's children - we express genuine sorrow and regret. That is the monstrous behavior of our enemies....

And Ariel Sharon's withdrawal from Gaza. What did it get us? A barrage of Kassem missiles fired at peaceful settlements and the kidnapping of soldiers. Then too, I don't recall you reacting with such alarm....

In a loud clear voice, looking you straight in the eye, I stand before you openly and I will not apologize. I will not capitulate. I will not whine. This is a battle for our freedom. For our humanity. For the right to lead normal lives within our recognized, legitimate borders. It is also your battle. I pray and I believe that now you will understand that. Because if you don't, you may regret it later, when it's too late.

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August 4, 2006 at 9:42pm] 0 Trackbacks / Possibly More Trackbacks

Who Thinks Bush is a lot like Hitler?

The organization World Can't Wait has run an advertisement urging a rally on October 5 to "mass resistance" to begin to "Drive out the Bush regime." After listing various Bush sins, the advertisement declares "People look at all this and think of Hitler – and they are right to do so. The Bush regime is setting out to radically remake society very quickly, in a fascist way, and for generations to come."

The advertisement lists the following endorsers:

James Abourezk, Aris Anagnos, Anti-Flag, Edward Asner, Russell Banks, Ed Begley Jr., Harry Belafonte, St. Clair Bourne, Gabriel Byrne, Margaret Cho, Ward Churchill, Kate Clinton, US Rep. John Conyers Jr., John Densmore, Jesse Díaz Jr., Ariel Dorfman, Tom Duane, Michael Eric Dyson, Steve Earle, Niles Eldredge, Daniel Ellsberg, Eve Ensler, Lawrence Ferlinghetti, Jane Fonda, Michael Franti, reg e. gaines, Martin Garbus, Wavy Gravy, André Gregory, Paul Haggis, Sam Hamill, Suheir Hammad, Kathleen Hanna, Stephen Hays, Merle Hoffman, Rev. Jesse L. Jackson, Mumia Abu-Jamal, Bill T. Jones, Rickie Lee Jones, Sarah Jones, Brig. Gen. (ret) Janis Karpinski, Casey Kasem, Ron Kovic, Jonathan Kozol, Jessica Lange, Lewis Lapham, Mark Leno, Rabbi Michael Lerner, George Lois, US Rep. Cynthia McKinney, Mark Crispin Miller, Tom Morello, US Rep. Major Owens, Ozomatli, Grace Paley, Harvey Pekar, Sean Penn, Jeremy Pikser, Harold Pinter, Frances Fox Piven, Sister Helen Prejean, Michael Ratner, Boots Riley, Mark Ruffalo, US Rep. Bobby Rush, Susan Sarandon, James Schamus, Richard Serra, Rev. Al Sharpton, Cindy Sheehan, Martin Sheen, Gary Soto, Nancy Spero, Gloria Steinem, Lynne Stewart, Serj Tankian, Jonathan Tasini, Sunsara Taylor, Studs Terkel, Gore Vidal, Kurt Vonnegut, Alice Walker, Naomi Wallace, Lt. Ehren Watada, US Rep. Maxine Waters, Cornel West, Saul Williams, Krzysztof Wodiczko, Ann Wright, Howard Zinn.
All I can say is that I'm disappointed with Wavy Gravy, but not surprised about most of the rest.

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July 29, 2006 at 1:55pm] Possibly More Trackbacks

How Israel and Thailand are preventing jihadi shootings

At schools and other youth centers, they allow or require the presence of armed adults, such as teachers, as I detailed in a 2004 article for National Review Online. These policies were adopted to deal with well-organized terrorist attacks, rather than with perpetrators such as the lone Jew-hater who apparently carried out yesterday's crimes in Seattle. Lone terrorists, especially those who are mentally ill, might be less subject to rational deterrence than are organized terrorist gangs. On the other hand, lone terrorists, should they attempt to instigate an attack, would be all the more easily defeated by the guardian adults, since the perpetrator would be acting alone, and would usually not be as careful about planning as are organized terrorist gangs.

Like Eugene Volokh, I am skeptical about "hate crime" laws as a response to crimes such as the Seattle shooting. In a 2003 Issue Paper for the Independence Institute, I examined the record of Colorado's "ethnic intimidation" statute, and found the statute to have contributed almost nothing to effective criminal justice in Colorado. While calling for repeal of the ethnic intimidation statute, I argued that the penalty for hate crime hoaxes should be substantially increased, since hate crime hoaxes (like hate crimes themselves) cause broad fear in the community. PDF version. HTML version.

On another subject, my Rocky Mountain News media column notes how the Denver Post erred in describing Republican gubernatorial candidate Bob Beauprez's stance on gun control. And I chastise the Denver Newspaper Agency for running as bait-and-switch web ad promising "You have been chosen to receive a FREE 42-inch Samsung or Panasonic HDTV."

Finally, those of you who read Spanish might enjoy Política de Oficiales: Los recientes escándalos del departamento de policía son el resultado de la creciente intervención del estado federal y de las prácticas de empleo racistas. It's a Spanish translation of an article that Mike Krause and I wrote for American Outlook in 2001; examining the Rampart scandal in Los Angeles, and similar problems in other big city police departments, we suggest that the problems of corruption and illegal violence involving the police are aggravated by excessive federal involvement, race-based hiring, and the drug war.

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[David Kopel, July 26, 2006 at 3:32am] 1 Trackbacks / Possibly More Trackbacks

U.S. House votes to ban gun confiscation in disasters:

On Tuesday, the House of Representatives voted 322 to 99 to prohibit federal employees, as well as state and local police which receive federal funding (that is, most of them) from confiscating lawfully-owned firearms. "The Disaster Recovery Personal Protection Act" (H.R. 5013) was sponsored by Rep. Bobby Jindal (R-Louisiana), in response to the illegal gun confiscation perpetrated by two Louisiana parishes after Hurricane Katrina. (For the VC's discussion of the issue last fall, and for other documents related to the controversy, start here and follow the links.)

A similar measure, sponsored by Louisiana Senator David Vitter (R), as a rider to the homeland security appropriations bill, H.R. 5441, passed the Senate 84-16 last week. Section 570 of that bill simply states "None of the funds appropriated by this Act shall be used for the seizure of a firearm based on the existence of a declaration or state of emergency."

The Jindal bill prohibits federal and state/local police from confiscating (at any time, not just after a natural disaster) firearms which are legally owned under state and federal law. The bill likewise forbids police from requiring the registration of firearms, or prohibiting the possession of firearms in particular places, to the extent that registration or possession bans are not authorized by federal or state law. Finally, the bill forbids federal officers from banning on the otherwise-lawful carrying of firearms by persons engaged in disaster relief under federal supervision. The bill creates a right to sue for persons aggrieved by the violation of the law, and provides for the award of attorney's fee to victorious plaintiffs.

The bill's findings state:

(1) The Second Amendment to the Constitution states, `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,' and Congress has repeatedly recognized this language as protecting an individual right.

(4) Many of these citizens [those affected by Katrina] lawfully kept firearms for the safety of themselves, their loved ones, their businesses, and their property, as guaranteed by the Second Amendment, and used their firearms, individually or in concert with their neighbors, for protection against crime.

(5) In the wake of Hurricane Katrina, certain agencies confiscated the firearms of these citizens, in contravention of the Second Amendment, depriving these citizens of the right to keep and bear arms and rendering them helpless against criminal activity.

(6) These confiscations were carried out at gunpoint, by nonconsensual entries into private homes, by traffic checkpoints, by stoppage of boats, and otherwise by force.

(8) The means by which the confiscations were carried out, which included intrusion into the home, temporary detention of persons, and seizures of property, constituted unreasonable searches and seizures and deprived these citizens of liberty and property without due process of law in violation of fundamental rights under the Constitution.

(9) Many citizens who took temporary refuge in emergency housing were prohibited from storing firearms on the premises, and were thus treated as second-class citizens who had forfeited their constitutional right to keep and bear arms.

(11) These confiscations and prohibitions, and the means by which they were carried out, deprived the citizens of Louisiana not only of their right to keep and bear arms, but also of their rights to personal security, personal liberty, and private property, all in violation of the Constitution and laws of the United States.

If the Jindal bill becomes law in its current form, then the bill would be the fifth time in which a Congressional law has formally recognized the Second Amendment as an individual right. These laws are the Freedmen's Bureau Act of 1866, the 1941 Property Requisition Act, the Firearms Owners' Protection Act of 1986, and the 2005 Protection of Lawful Commerce in Firearms Act (S. 397). See Stephen Halbrook's Tennessee Law Review article for discussion of the first three.

Interestingly, the Jindal bill refers to a plaintiff's "rights, privileges, or immunities", while S. 397 stated Congress's intent to protect the "rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution."

Under the Supreme Court's narrowest readings of the Privileges and Immunities clause of the 14th Amendment, nothing in the Bill of Rights is a Privilege and Immunity. Arguably, the Congressional bills could be said to be related to the few national rights which have been held to a P&I of national citizenship. For example, gun prohibition (enforced through outright confiscation, or through lawsuit-based destruction of the firearms business) might be said to impose an impermissible burden on the right of interstate travel. (The 1986 FOPA contains preemption language protecting interstate travelers with unloaded guns which are not "directly accessible from the passenger compartment." The preemption applies only if the traveler may lawfully possess the gun in both his place of origin and his destination. Section III.D.2 of David Hardy's huge article on FOPA supplies the details.)

On the other hand, the repeated Privileges & Immunities language might be considered a signal to the Court that its narrow P&I decisions were mistaken, and ought to be reconsidered, and that the Second Amendment is among the Privileges & Immunities guaranteed by the Fourteenth Amendment. Of course neither the Congressional hints about P&I, nor the repeated explicit statements about the Second Amendment are binding on the courts. On the other hand, the Court is often reluctant to diverge too far from public sentiment, and the huge, bipartisan majority in favor of the Jindal bill (especially if it becomes law) as well as the substantial bipartisan support for the Protection of Lawful Commerce in Firearms Act might well be regarded by Supreme Court Justices who believe in "a living Constitution" as proof that the Second Amendment is alive and well, and not obsolete or irrelevant, or confined only to the National Guard, as some law review authors have claimed.

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July 24, 2006 at 8:34pm] Possibly More Trackbacks

African Genocide and Gun Bans:

That's the topic of my new article in America's 1st Freedom (one of the magazines for NRA members). Using information gathered by the International Crisis Group and Sudan Update, the article details the Khartoum government's confiscation of guns from the Darfuris, and arming of the Arab janjaweed. The article also reports on the four Darfuri girls from a refugee camp who have been arrested for murder because they stabbed a soldier who was trying to rape them. Finally, the article notes how successfully the United Nations is promoting Sudan-style gun control all over sub-Saharan Africa.

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July 21, 2006 at 7:12pm] 12 Trackbacks / Possibly More Trackbacks

United Nations an Accomplice in Hezbollah Kidnapping:

After Hezbollah's kidnapping of a pair of Israeli soldiers spurred an Israeli counter-attack, many critics of Israel actions have suggested that the United Nations can serve as a buffer between Israel and Hezbollah. To the contrary, the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers.

The United Nations Interim Force in Lebanon (UNIFIL) has been deployed since 1978, not long after Israel first entered Lebanon in pursuit of PLO terrorists. UNIFIL was created pursuant to Security Council Resolution 425, for the purpose of "confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area." Quite obviously UNFIL has utterly failed to achieve the Security Council's objectives, either before or after Israel's 2000 complete withdrawal from Lebanon. One reason is that UNIFIL does not interdict Hezbollah attacks on Israel. Instead, UNIFIL allows Hezbollah to set up positions next to UNFIL units, in effect using UNIFIL as human shields against Israeli counterstrikes. (Aluf Benn, Israel accuses UN of collaborating with Hezbollah," Haaretz, Sept. 11, 2005.)

UNIFIL's most notorious collaboration with terrorists involved the kidnapping and murder of three Israeli soldiers, and the subsequent cover-up.

On October 7, 2000, Hezbollah terrorists entered Israel, attacked three Israeli soldiers on Mount Dov, and abducted them Lebanon. The kidnapping was witnessed by several dozen UNIFIL soldiers who stood idle. One of the soldier witnesses described the kidnapping: the terrorists set of an explosive which stunned the Israeli soldiers. Clad in UN uniforms, the terrorists called out, "Come, come, we’ll help you."

The Israeli soldiers approached the men in UN uniforms. Then, a Hezbollah bomb detonated—-apparently prematurely. It wounded the disguised Hezbollah commander, and three Israeli soldiers.

Two other terrorists in U.N. uniforms dragged their Hezbollah commander and the three wounded soldiers into a getaway car.

According an Indian solider in UNIFIL who witnessed the kidnapping, "By this stage, there was a big commotion and dozens of UN soldiers from the Indian brigade came around." The witness stated that the brigade knew that the kidnappers in UN uniform were Hezbollah. One soldiers said that the brigade should arrest the Hezbollah, but the brigade did nothing.

According to the Indian soldier, the UNFIL brigade in the area "could have prevented the kidnapping."

"I’m very sorry about what happened, because we saw what happened," he said. Hezbollah "were wearing our uniforms and it was too bad we didn’t stop them."

It appears that at least four of the UNIFIL "peacekeepers," all from India, has received bribes from Hezbollah in order to assist the kidnapping by helping them get to the kidnapping spot and find the Israeli soldiers. Some of the bribery involved alcohol and Lebanese women.

The Indian brigade later had a bitter internal argument, as some members complained that the brigade had betrayed its peacekeeping mandate. An Indian government investigation sternly criticized the brigade's conduct.

There is evidence of far greater payments by Hezbollah to the UNIFIL Indian brigade, including hundreds of thousands of dollars for assistance in the kidnapping and cover-up.

The UN cover-up began almost immediately.

Lebanon's The Daily Star reported the story told by a former officer of the Observer Group Lebanon (OGL), which is part of the UN Truce Supervision Organization (UNTSO). ("UN 'destroyed' evidence after abduction of 3 Israeli troops," The Daily Star, July 20, 2001.)

A few hours after the kidnapping, UNTSO learned that two abandoned cars had been discovered. One was a white Nissan Pathfinder with fake UN insignia; it had hit an embankment because it was being driven so fast that the driver missed a turn. The other was a Range Rover; it was missing a tire rim, and was still running when it was discovered.

Rather than using the very-recently-abandoned vehicles as clues to rescue the kidnap victims, the UN initiated a cover-up. The next morning, eighteen hours after the kidnapping, a team of OGL and the Indian UNIFIL began removing the contents of the cars.

The Range Rover was soaked with blood. Among the contents of the vehicles may have been a cell phone belonging to the terrorists. The UNTSO officer confirmed that the cars contained "extremely sensitive" items which included "current and relevant information that could have been easily linked to the incident."

A UNIFIL peacekeeper videotaped the removal of the contents, and attempted to tow one of the cars. According to a much-later U.N. report, there were fifty items taken from the car, seven of them blood-stained. (Report of the fact-finding investigation relating to the abduction of three Israeli soldiers on 7 October 2000 and subsequent relevant events, Aug. 2, 2001.)

The end of the UNIFIL videotape featured armed Lebanese men confronting the UN forces, and taking the cars away from the UN. The UN personnel did not resist, because, they later claimed, the cars did not belong to the UN anyway.

The UNTSO officer told The Daily Star that the UN ordered its personnel to destroy all photographs and written reports about the incident.

The U.N. did not provide the Israelis with the automobile contents, or the videotape, both of which might have helped the Israelis rescue the kidnap victims. Instead, the seized contents of the cars were taken to a town in Lebanon, stored in a safe, and some were eventually returned to Hezbollah.

Israel found out about the videotape, and demanded that the UN let Israeli investigators see it. Kofi Annan and his Special Envoy denied that any videotape existed. It is not clear whether Annan was lying, or whether he was misled.

Nine months after the kidnapping, July 6, 2001, the UN admitted that is had the videotape. Annan ordered an internal UN Report, which was led by UN undersecretary-General Joseph Connor. (Connor was later implicated in the Oil-for-Food scam.) The report revealed that the UN had two additional videotapes—one of which contained still photographs from the kidnapping itself. The UN investigation declared that there was no evidence that the UNIFIL forces had been bribed, or that the UN had deliberately misled anyone.

Even after admitting the existence of the first videotape, Annan refused to allow Israel to view it. He claimed that letting Israel see evidence about the kidnapping would undermine the UN’s neutrality. Thus, Annan insisted on neutrality between innocent victims and terrorists who had used fake UN insignia and who had taken vehicles from UN staff a gunpoint.

The United States House of Representatives, on July 30, 2001, passed by a vote of 411-4 a resolution urging the UN to allow Israel to see the videotape. Annan relented, but only under the condition that the tape be edited so as to hide the faces of the Hezbollah perpetrators. He also agreed to give the Israelis some, but not all, of the items which the UN had seized from the getaway cars.

On January 29, 2004, the bodies of the murdered Israelis were returned to Israel by Hezbollah, as part of a prisoner exchange.


UPDATE: In response to one of the commenters, I've added the following analysis on two questions: 1. By what standard can the UN be considered an "accomplice" in the Hezbollah kidnapping? 2. Is anti-semitism the best explanation of UN behavior?

1. Regarding UN complicity in kidnapping, one can analogize from the rules that are used to decide whether a corporation is criminally culpable for the acts of its employees, or whether a government agency is liable under section 1983 for the acts of its employees. At the lowest level--the four bribed Indians--the trier of facts looks at the entity's efforts to prevent or punish the employee conduct in question, and whether the entity creates a culture in which the conduct is encouraged or tacitly tolerated.

For misconduct by higher-ranking employees, prosecutors and fact-finders tend to be more likely to conclude that misconduct is attributable to the entity. If you believe the UNTSO official who spoke to The Daily Star(not exactly a reflexively pro-Israel newspaper), or if you believe that reports of a vast bribery scheme are true, then you might well find culpability on the part of the UN.

But I think that my calling the UN an "accomplice" is supportable purely on the undisputed public facts about the UN's concealment and suppression of evidence — with some of the suppression being conducted at the direct order of the UN's chief executive. I believe the undisputed facts are sufficient to show, at the least, that the UN was an accessory-after-the-fact to the kidnappings.

Moreover, the activities of the UN's top staff in New York City, and of high-ranking UN officials in Lebanon, are also relevant evidence for whether there is UN corporate culture of tolerance for terrorism/kidnapping, which is relevant evidence for whether the misconduct of the Indian brigade can be attributed to the UN.

As some commenters have pointed out, there is a very long record of the UN being extremely lax towards crimes committed by its peacekeepers in many other places--for example, the rapes of women and girls in former Yugoslavia, Cambodia, West Africa, and the Congo. The global record suggests, again, a corporate culture of indifference (despite official statements to the contrary) towards employee on-the-job involvement in violent crime; the evidence of a global culture of indifference is more evidence which a fact-finder could use in concluding that crimes of the Indian brigade were attributable to the UN.

2. Anti-semitism. I don't think that anti-semitism is the root of the UN's problem with Israel. It's true, as some commentators have pointed out, that the UN is functionally anti-semitic; that is, the UN constantly condemns Israel far more often and more vehemently than it condemns other countries which (even if you believe the worst about Israel) violate human rights much more severely than Israel does. The Eye on the UN website provides copious documentation of the UN's functional anti-semitism.

Nevertheless, I think the UN's pervasive anti-Israelism, although anti-Semitic in practice, is not primarily motivated by hatred of Jews.

Hitler was genuinely committed to anti-Semitism. He harmed his own military interests by giving rail line priority to trains which were headed for the death camps, putting those trains ahead of military transport trains. Similarly, Hitler would have produced resources with which to fight the war if he had used Jews as slave labor (as many were used before extermination), rather than killing them en masse. Who else would harm their own self-interest in order to kill Jews. The answers include "the government of Iran, Hezbollah, Hamas, and the PLO." But only one of these has a UN delegation, and the UN had turned vehemently against Israel long before Iran's government was taken over by Islamonazis.

Way back in the 1950s, the Arab bloc at the UN had succeeded in perverting UNRWA so that UNRWA would perpetuate rather than solve the Palestinian refugee problem. The Arab dictators of the day may have personally despised Jews, but I think that the dictators were acting out of self-interest, not prejudice. They recognized that keeping the Arab-Israeli conflict festering was a good way to distract and divert the anger of their own nations' populations. In retrospect, we know that the strategy was only partially successful, since the fomentation of anti-Israel Jew hatred sometimes aroused local forces which the dictatorships were unable to control.

Arab government-incited anti-semitism had the advantage of building on historical prejudices against Jews. (It's true that, in the past, Arab Moslem regimes sometimes treated Jews better than did European Christians, but there was also a long record of atrocious abuse of Jews in the Arab world on which the post-WWII Arab dictatorships could build.)

But suppose that modern Israel had never been created, and that, after WWII, some other state for a stateless people had been born. Maybe sympathy for the Gypsies, who were also the victims of Nazi genocide, might have led to the creation of Gypsistan (or Romastan, according to the modern usage) in a part of Egypt. (The word "gypsy" comes from the "Egypt", based on the belief that the group originated there.) Or some other persecuted group might have established a homeland in the wastelands of Libya. In any case, I think that the establishment of a non-Arab state would likely have led to military confrontation, and if the attempt to exterminate that state by force had failed, then the Arab dictators would have found political advantage in fomenting hatred of that non-Arab state.

Although UNRWA was captured very shortly after it was born, the broader UN assault on Israel didn't get going until the 1960s; the assault peaked in the 1970s, and later receded slightly from its 1970s apex. The anti-Israel assault of the 1970s was merely one element in a successful Soviet strategy of aligning the new UN members, most of them former colonies of Europe, and most of them dictatorships, into an anti-Western bloc. Israel, having the misfortune of being located in the middle of a sea of dictatorships, was a natural target of this UN super-majority; but the same would have been true if Romastan were a pro-western democracy.

Today, the Islamic bloc at the UN continues to find local political advantage in anti-Israelism (as it would with anti-Romastanism), while the rest of the Third World finds it advantageous to go along. I don't think that the dictatorship of China, for example, cares one way or the other about Jews or Israel; but the Chinese dictatorship correctly discerns that voting with the Islamic bloc against Israel is a cost-free way to curry favor with Islamic states, and win their support on issues relevant to China.

Regarding Kofi Annan, and most of the rest of the UN's leading executives, I would say that, functionally, they are vicious anti-Semites, but that, in their hearts, they are not particularly prejudiced against Jews per se. Rather, their actions are explainable under the principles of organizational behavior. Annan is a career UN employee (the first one to become Secretary-General), and he has risen through the organization by shrewdly placating whoever needs to be placated. His anti-Israel actions are simply the result of his astute calculation of the balance of forces at the UN. If he could gain more power at the United Nations by denouncing Fiji or by defending Israel, he would do so.

So there is no anti-semitic conspiracy at the UN, in the sense of a conspiracy directed by people who are deeply motivated by hatred of Jews. Rather, the UN's criminal complicity in the kidnapping of Israelis, like the rest of the UN's anti-Israelism, is explainable as the logical result of a wide variety of UN actors behaving according to their self-interest.


UPDATE ON ACCESSORY-AFTER-THE-FACT SPECIFIC INTENT

Orin, in a post above, argues that, even though high-ranking United Nations officials destroyed and withheld evidence about the Hezbollah crime (for which the accomplices included four rank and file UN peacekeepers), the UN officials would not be guilty as accessories-after-the-fact, because they did not have the specific intent that is necessary for such liability.

If there actually were a prosecution, I don't know whether the law which would be applied would be Lebanese law, Israeli law, International Criminal Court law (if similar acts were perpetrated today), US law for the portion of the cover-up in the US (assuming the UN employees waived or lost their diplomatic immunity), or some other law. But for simplicity, let us look at a very straightforward example of how American juries are instructed to determine accessory guilt.

Here the Sixth Circuit Jury Instructions:

4.02 ACCESSORY AFTER THE FACT

(1) _______ is not charged with actually committing the crime of _______. Instead, he is charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime. A person who does this is called an accessory after the fact.

(2) For you to find _______ guilty of being an accessory after the fact, the government must prove each and every one of the following elements beyond a reasonable doubt:

(A) First, that the defendant knew someone else had already committed the crime of _______.

(B) Second, that the defendant then helped that person try to avoid being arrested, prosecuted or punished.

(C) And third, that the defendant did so with the intent to help that person avoid being arrested, prosecuted or punished.

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.


It would appear relatively easy for the prosecutor to prove elements (A) and (B) of the offense. As for (C), let us presume that a UN official testifies honestly during his trial (perhaps in exchange for leniency):

Q: Why did you destroy and conceal the evidence?

A: To avoid embarrassment to the United Nations.

Q: Did you believe that it would be embarrassing to the United Nations if the public found out that four UN peacekeepers were accomplices in the crime?

A: Yes.

Q: Did you worry that if the Hezbollah perpetrators were caught, they might reveal, or the prosecutors might more easily discover, that UN peacekeepers were accomplices?

A: Yes.

Q: Did you destroy and conceal evidence with the intent of helping the Hezbollah perpetrators and the UN perpetrators avoid being arrested, prosecuted or punished?

A: Yes.

Q: Why?

A: Because achieving my intent of helping the perpetrators avoid being arrested, prosecuted or punished was indispensable to my ultimate intent of avoiding embarrassment to the United Nations. Isn't that obvious? I mean, once I formed my intent of avoiding embarrassments to the United Nations, I necessarily intended to accomplish all the steps which were requisite to my ultimate intent. I certainly had the common sense to know that one of the steps which I must take would be helping the perpetrators avoid being arrested, prosecuted or punished.

Related Posts (on one page):
  1. Accomplices, Accessories, Mens Rea, and More:
  2. Response to "United Nations an Accomplice in Hezbollah Kidnapping":
  3. United Nations an Accomplice in Hezbollah Kidnapping:
70 Comments

David Kopel, July 15, 2006 at 12:34pm] 1 Trackbacks / Possibly More Trackbacks

Missing Pieces in Immigration Stories

In my latest media column, I point out how the Denver Post falsely portrayed Georgia State Senator Sam Zamarripa, who is that state's leading advocate for illegal aliens. Also, how the Post missed the research showing the complexity of the issue of illegal aliens and Medicaid. Plus a suggestion that the Rocky Mountain News drop the mean-spirited cartoons of Dan Asmussen of the S.F. Chronicle.

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[David Kopel, July 9, 2006 at 5:33pm] Possibly More Trackbacks

Triple Bleg

I would be grateful for information on any of these three topics:

1. If a person likes Green Day's sound, but not their politics, what other bands might the person enjoy?

2. What do you recommend as an entry-level shotgun for a pre-teen? It's really important that the stock be short, to accommodate short arms. If the shotgun will only be used on clay birds, and never for hunting live animals, is there any disadvantage to 28 gauge or .410?

3. I am looking for a web-based traffic meter for my website. I already run SiteMeter, but that of course covers only the home page. The website includes hundreds of different htm and pdf files, and I would prefer not to have to install new code on every single page. The solution cannot involve installing software on the website server. I realize that there is no free program which will do the the trick.

Thanks!

UPDATE: Thanks to the many excellent and thoughtful commenters! Here's what I did:

1. For Green Day substitutes, I'm starting with MxPx and Mr. T Experience. I will be checking out the many other bands highlighted by the commenters. (BTW, the music isn't for personal use; it's for someone else. I'm not punk.)

2. For the gun, I got the New England Firearms single-shot youth shotgun. It was the only gun I found that really fit well and was comfortable for the pre-teen to hold. I really like the fact that it's a break-open, that it's single shot, and that the hammer has to be manually cocked before a shot can be fired. Custom stock-fitting makes a lot of sense, but I couldn't bear to spend the money. (The NEF is a real bargain; only $107 at Cabelas.) Recoil would certainly be reduced with a gas-operated semi-auto, and I'm sure that's a good choice for some folks, but I agreed with commenters who suggested that a semi-auto might not be the right starter shotgun for my situation. At Cabelas I discovered that Remington sells a recoil-absorbing gel pad which can be inserted in an interior shoulder pocket in some shooting vests. We tried it out today, and its works superbly.

3. I'm adding the sitemeter code my Dynamic Web Templates. I will also explore getting ahold of the server logs.

Thanks again for all the great advice!

109 Comments


[David Kopel, July 7, 2006 at 7:16pm] Possibly More Trackbacks

U.N. Conference Ending, Freedom Winning!!

As of 6 p.m. eastern time, the word from the United Nations small arms conference is that the conference is concluding with NO final document, and NO plans for any follow-up conference. It was the latter issue that prevented an agreement about a final document. The officials who had been charged by the conference chair with drafting the conference document presented a final take-it-or-leave it document a little while ago; that draft document eliminated various provisions that the U.S. delegation had found objectionable, but also declared that there would be at least two more conferences. The U.S. delegation refused to assent, and so the conference ended with no consensus agreement, and no plans for future conferences. The back-up plan of the international gun prohibition movement, and their many allies within the U.N. and national U.N. delegations, was to give up on significant progress in 2006, but to keep the game going with future conferences, when a more pliant U.S. administration might welcome an international gun control program.

If a few hundred votes had changed in Florida in 2000, or if 60,000 votes had changed in Ohio in 2004, the results of the 2001 and 2006 U.N. gun control conferences would have been entirely different. There would now be a legally binding international treaty creating an international legal norm against civilian gun ownership, a prohibition on the transfer of firearms to "non-state actors" (such as groups resisting tyrants), and a new newspeak international human rights standard requiring restrictive licensing of gun owners. With a Presidential signature on such a treaty (even if the treaty were never brought to the Senate floor for ratification), the principles of the anti-gun treaty would be eroding the Second Amendment, through Executive Orders, and through the inclination of some courts to use unratified treaties as guidance in interpreting the U.S. Constitution.

At the domestic level, the Bush administration has been close to neutral on the gun issue — doing very little to promote or oppose gun control in Congress. One rare exception was that the Ashcroft Department of Justice returned to the historic (pre-LBJ) DOJ position that the Second Amendment guarantees an individual right. And of course President Bush has signed all the pro-Second Amendment legislation which Congress has sent him, most importantly the Protection of Lawful Commerce in Firearms Act.

At the United Nations, however, the Bush administration has twice rescued our right to keep and bear arms from destruction.

There are plenty of issues on which pro-Constitution Americans can legitimately complain that the Bush administration has continued or worsened bad policies from previous administrations — such as federal interference in education, erosion of the Fourth Amendment, and allowing the Bureau of Alcohol, Tobacco, Firearms and Explosives to ignore statutory controls on its behavior. But in regards to the United Nations assault on the Second Amendment, the Bush administration, including John Bolton (in 2001 as Undersecretary of State, and in 2006 as U.N. Ambassador) has performed magnificently. The gun rights activists whose hard work in 2000 and 2004 was the sine qua non of Bush's narrow electoral victories can take satisfaction that their work has, literally, saved the Second Amendment.

Today's victory is extremely important, but it should not be mistaken for a final victory in the international arena. The international gun prohibition lobbies are already looking towards other international fora where they can advance their goals, including their ultimate prize--a binding treaty requiring severe restriction of citizen gun possession. The various U.N. departments which have been providing funding and propaganda for gun prohibition and confiscation will almost certainly continue to do so.

For now, everyone who cares about the right to arms has much to celebrate.

Two of the most important, but less-known heroes of today's victory are Dr. Paul Gallant and Dr. Joanne Eisen, Senior Fellows at the Independence Institute. They have worked relentlessly to give a voice to the victims around the world for whom gun confiscation really was the crucial step to the destruction of all their other rights, or the destruction of life itself — in places such as Bougainville, Uganda, Kenya, Bosnia, and Zimbabwe. Today, the world is a better, freer place because of Paul and Joanne.

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[David Kopel, July 6, 2006 at 8:02pm] Possibly More Trackbacks

More International Gun News from the Independence Institute:

1. The latest bilingual issue of Les actualités aux armes(French gun news) is now available on the web. The issue presents links to articles in French about various gun issues, along with short English-language summaries of the articles.

2. In a new podcast from iVoices.org, I discuss the international gun prohibition movement, the current United Nations conference, and my recent paper on human rights violations in the disarmament campaigns in Kenya and Uganda.

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[David Kopel, July 1, 2006 at 12:33pm] Possibly More Trackbacks

Epic Battle for Press Freedom

In my latest Rocky Mountain News column, I detail the 1905 clash between the Colorado Supreme Court and Democratic Senator Thomas Patterson, the publisher of the Rocky Mountain News. Patterson was convicted of criminal contempt of court after he published a series of scathing editorials and cartoons accusing the court of corruption, after the court invalidated an election in Denver.

Let me add a few observations which might be of particular interest to law-oriented readers, and which couldn't fit in the 800 word limit of the printed column.

1. The underlying case involved a clash between Denver's newly-created constitutional home rule powers (Amendment 20 of the state constitution) and the rest of the constitution; specifically, did Amendment 20 give Denver the power to schedule spring elections for certain municipal offices. The court majority said that, for county officers whose existence is contemplated in the state constitution, the election must be in the November, when all state-related elections must take place. Unlike Patterson, I think that there were good legal arguments on both sides of the question.

2. The Supreme Court majority opinion in the contempt case (84 P. 912) is difficult reading, especially because the author liked to write paragraphs over a page long. Most of the opinion consists of the offending newspaper articles, plus Patterson's averments. The legal analysis does not come until the very end.

3. The dissenting opinion is beautifully-written and inspiring.

4. The Holmes opinion for the U.S. Supreme Court (205 U.S. 454) is of course well-written, but it tersely avoids the central issue. As Holmes points out, there could not possibly be a blanket rule that truth is a defense in a criminal contempt case. For example, a lawyer might disclose some information which was truthful, but which was subject to a confidentiality order. But the question in Patterson was truthful information about judicial misconduct. (Or more precisely, information which Patterson sincerely believed to be truthful.) Harlan and Brewer dissented.

5. In the 1918 case of Toledo News v. U.S., the U.S. Supreme Court upheld the authority of a federal court to use criminal contempt to punish controversial speech. Holmes dissented, and Brandeis joined the dissent.

6. In the 1941 case Nye v. U.S., a 6-3 majority of the Supreme Court, led by William Douglas, reversed the Toledo decision. William E. Doyle, a Colorado lawyer who would later serve on the Colorado Supreme Court and as a federal district judge, wrote that the Court had finally recognized that the First Amendment must prevail over a court's contempt power, and so "Thomas Patterson's beliefs have received recognition from the highest court in the land." Doyle, "Patterson Vindicated," 18 Dicta(no. 7, July 1941): 169-72.

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[David Kopel, June 30, 2006 at 6:36pm] Possibly More Trackbacks

"Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa"

That's the subject of a new Issue Backgrounder just published by the Independence Institute, co-authored by Paul Gallant, Joanne Eisen, and me. The monograph details how U.N.-backed gun confiscation programs in Kenya and Uganda have led to murder, torture, and arson, and have turned tens of thousands of pastoral tribespeople into starving refugees. The paper is available in PDF and in HTML.

41 Comments


[David Kopel, June 26, 2006 at 7:07pm]

Gun Control in French-speaking Africa. Le contrôle des armes en Afrique francophone

A new report from the Independence Institute reports on gun control developments in Rwanda, Burundi, Ivory Coast, D.R. Congo, and ECOWAS in the last several weeks. The report is in both English and French. En français et anglais.

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David Kopel, June 19, 2006 at 8:50pm] 0 Trackbacks / Possibly More Trackbacks

The Case of Marilyn Musgrave and the Dog Feces:

My latest media column for the Rocky Mountain News looks at coverage of the "activist" who put dog feces in the office mail slot of Rep. Marilyn Musgrave. Plus, News columnist Paul Campos misreads InstaPundit, Diane Carman falls for General Motors trolley car hoax, and The Nation wrongly charges the Colorado Rockies baseball team with racism.

Technology enabling: For folks who would like a RSS feed of my website, here's the URL: http://www.davekopel.org/feed.xml. I'm brand new to RSS, so suggestions for improvement are welcome. For a more retro technology, here's the link to the PDA-enabled version of my home page: http://www.davekopel.org/PDA.htm.

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[David Kopel, June 13, 2006 at 6:27pm] 0 Trackbacks / Possibly More Trackbacks

Celebrate diversity:

For those of you who like to read in foreign languages, or have friends who do, here are some recent translations of my work in various languages. French: Le Contrôle d’Hitler. Les leçons de l’histoire Nazie. (Nazi gun controls). Italian: La liberta, l'esercito e la legge (Waco and law enforcement militarization). Polish: 5 new articles, on handgun bans, Michael Moore, Microsoft antitrust, national ID cards, and AIDS drugs in Africa.

The website has additional foreign language resources, including many more articles in French, Italian, and Spanish, as well as articles in German, Swedish, Danish, Dutch, Hungarian, Czech, Portuguese, and Russian.

Volunteer translators are sought for any and all languages; translators must be living, but the translated language need not be; I would be eager to receive the assistance of translators skilled in Latin, Klingon, ancient Greek, or the many Elvish tongues. If you'd like a chance to practice your Quenya or German skills, just send me an e-mail at the e-mail link on the lower-left corner of my home page.

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[David Kopel, June 12, 2006 at 11:35pm] 2 Trackbacks / Possibly More Trackbacks

"Guns and Violence: The English Experience"

That's the title of Joyce Malcolm's excellent book on the history of gun control in Great Britain. Paul Gallant, Joanne Eisen, and I review it for a forthcoming symposium issue of George Mason's Journal of Law, Economics & Policy. The review is available in PDF and HTML.89 Comments

Podcast on Colorado firearms preemption case:

On Monday, the Colorado Supreme Court announced that it was divided 3-3 on the appeal of a case involving Denver's challenge to the Colorado state law preempting some of Denver's anti-gun laws. As a result, the decision of the Denver District Judge stands: Denver may retain some of the gun laws (the "assault weapons" ban, the "Saturday Night Special ban," and the near-prohibition on the open carrying of firearms) which had been preempted by state law. The tie vote existed because after the retirement of Justice Rebecca Love Kourlis, the court vacancy was filled by Allison Eid. As Solicitor General for Colorado, Eid had argued the case on behalf of Colorado (and against the City of Denver) during oral argument in December, so Justice Eid recused herself from the decision of the case.

In a new podcast on iVoices.org, I explain the decision, and its ramifications. An Independence Institute Issue Backgrounder I wrote in 1999 explains the need for a Colorado preemption law. A 2003 Backgrounder details the limited preemption law (much less sweeping than similar laws in the overwhelming majority of states) which Colorado was about to enact. An Issue Paper from 1993 describes Denver's very repressive laws regarding juveniles and guns. (The preemption of some of the Denver laws, such as the ban on juveniles even touching guns under adult supervision, was upheld by the district court; one item raised in the Issue Paper--the overly broad definition of "weapon" was fixed at the behest of City Councilman Tim Sandos before the ordinance was enacted.) An op-ed by Donald DeKieffer illustrates the absurdity of Denver's juvenile laws.


[ David Kopel, June 6, 2006 at 1:26pm] 0 Trackbacks / Possibly More Trackbacks

D-Day was almost a German holiday

During World War II, the importance of an armed citizenry for defense against foreign tyranny was once again confirmed, as Dan Gifford and I suggested in a 1994 column for the D-Day anniversary. In another column, "Why D-Day Mattered," I examine the various hypotheticals about D-Day, such as the consequences of a defeat of the invasion, or of an invasion in 1943.

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[David Kopel, June 3, 2006 at 12:28pm] Possibly More Trackbacks

Media Miscoverage of Global Climate Change

That's the topic of my latest media analysis column for the Rocky Mountain News. Plus a short item on the Denver papers failing to report on Governor Bill Owens' support for illegal aliens.

120 Comments

David Kopel, May 17, 2006 at 3:31pm] 0 Trackbacks / Possibly More Trackbacks

Wisconsin Court Upholds Ban on Gun Carrying in Cars

The Wisconsin Supreme Court has announced its 4-3 decision in Wisconsin v. Fischer. Previously, the Court had held that Wisconsin's complete prohibition on concealed handgun carry could not constitutionally be applied to carrying in one's home or place of business. However, the Court also ruled that Wisconsin's constitutional right to arms did not forbid the prohibition of concealed carry in an automobile. Today's decision examined the case of a tavern owner who carried large sums of cash in his automobile after closing the tavern late at night in dangerous neighborhood. The majority of the court held that automobile carry was constitutionally protected only in "extraordinary" circumstances, which the majority said were not present in the instant case.

Three dissenters would have ruled that the concealed carry prohibition could not constitutionally be applied to the instant case. One of the three wrote a dissenting opinion in which he argued that Wisconsin's total ban on concealed carry should be held facially unconstitutional, in light of the right to arms which Wisconsin voters overwhelmingly added to their state constitution in 1998. The dissent briefly cited an Albany Law Review article I wrote about the previous Wisconsin cases. This is my 8th state supreme court citation, for those of you who are counting.

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[, May 9, 2006 at 12:55am]

Star Spangled Banner Lyrics

In light of the current controversy over the revision of The Star Spangled Banner into an anthem for illegal aliens, I thought it would be useful for readers to see more lyrics to the song. First of all, there are verses 2 through 4 to the official national anthem, all of which come directly from Francis Scott Key's 1814 poem The Defense of Fort McHenry. For a nation at war with totalitarians who are vastly more wicked than were our British opponents of 1814, the lyrics seem especially apt:
On the shore, dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, now conceals, now discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines on the stream:
'Tis the star-spangled banner! O long may it wave
O'er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has wiped out their foul footstep's pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation!
Blest with victory and peace, may the heaven-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner forever shall wave
O'er the land of the free and the home of the brave!

Later, the free people of Texas took the same tune to which The Star Spangled Banner had been set (more on that below), and created The Texan War Cry, celebrating the victory of the free Texans in their war of independence against the standing army of Santa Ana's tyranny:
Oh Texans rouse hill and dale with your cry.
No longer delay, for the bold foe advances.
The banners of Mexico tauntingly fly,
And the valleys are lit with the gleam of their lances.
With justice our shield, rush forth to the field.
And stand with your posts, till our foes fly or yield.
For the bright star of Texas shall never grow dim,
While her soil boasts a son to raise rifle or limb.

Rush forth to the lines, these hirelings to meet.
Our lives and our homes, we will yield unto no man.
But death on our free soil we'll willingly meet,
Ere our free Temple soiled, by the feet of the foe men.
Grasp rifle and blade with hearts undismayed,
And swear by the Temple brave Houston has made,
That the bright star of Texas shall never be dim
While her soil boasts a son to raise rifle or limb.

I wrote about the significance of these lyrics, and other aspects of the Texan war of independence, in my article Don't Mess with (Armed) Texans.

As many people know, The Star Spangled Banner and The Texan War Cry were both set to the tune of an older British song, To Anacreon in Heaven, which celebrates the entwining of the fruit of the vine with romantic love.

To Anacreon in Heaven, where he sat in full glee,
A few sons of Harmony sent a petition,
That He their Inspirer and Patron would be;
When this answer arrived from the Jolly Old Grecian
"Voice, Fiddle, and Flute,
"no longer be mute,
"I'll lend you my Name and inspire you to boot,
"And, besides, I'll instruct you like me to entwine
"The Myrtle of Venus with Bacchus's Vine.

II
The news through OLYMPUS immediately flew;
When OLD THUNDER pretended to give himself Airs
"If these mortals are suffer'd their Scheme to persue,
"The Devil a Goddess will stay above the Stairs.
"Hark, already they cry,
"In transports of Joy,
"Away to the Sons of ANACREON we'll fly,
"And there, with good Fellows, we'll learn to entwine
"The Myrtle of VENUS with BUCCUS'S Vine.

III
"The YELLOW-HAIRED GOD and his nine fusty Maids
"From Helicon's Banks will incontinent flee,
"IDALIA will boast but of tenantless Shades,
"And the bi-forked Hill a mere Desart will be
"My Thunder, no fear on't,
"Shall foon do it's Errand,
" and, dam'me! I'll swinge the Ringleaders, I warrant,
"I'll trim the young Dogs, for thus daring to twine
"The Myrtle of VENUS with BACCUS'S Vine.

IV
APOLLO rose up; and faid, "Pr'ythee ne'er quarrel,
"Good King of the Gods, with my Vot'ries below:
"Your Thunder is useless." - then, fhewing his Laurel,
Cry'd, "Sic evitabile fulmen, you know! ["This repels thunder"]
"then over each Head
"My Laurels I'll spread;
"So my Sons from your Crackers no Mischief shall dread,
"Whilst snug in their Club-Room, they jovially twine
"The Myrtle of VENUS with BACCUS'S Vine.

V
Next MOMUS got up, with his risible Phiz,
And swore with APOLLO he'd cheerfully join
"The full Tide of Harmony still shall be his,
"But the Song, and the Catch, & the Laugh shall be mine
"Then, JOVE, be not jealous
Of these honest Fellows.
Cry'd JOVE, "We relent, since the Truth you now tell us;
"And swear, by OLD STYX, that they long shall entwine
"The Myrtle of VENUS with BACCUS'S Vine.

VI
Ye sons of ANACREON, then, join Hand in Hand;
Preserve Unanimity, Friendship, and Love!
'Tis your's to support what's so happily plann'd;
You've the Sanction of Gods, and the FIAT of Jove.
While thus we agree
Our Toast let it be.
May our club flourish happy, united and free!
And long may the Sons of ANACREON intwine
The Myrtle of VENUS with BACCUS'S Vine.

Personally, I like all three sets of lyrics, and I also like other versions of The Star Spangled Banner which, in previous decades, have attempted to make our national anthem immediately accessible to new immigrants who are just beginning their journey towards citizenship and learning English. For these immigrants, a native-language version of The Star Spangled Banner was a step along the path to the day when they could renounce their allegiance to their native land, and take the American Oath of Citizenship:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgement whereof I have hereunto affixed my signature.
It seems to me that the real cause for controversy about Nuestro Himno is not that it's in Spanish, or that it revises Francis Scott Key's lyrics in ways that, within the four corners of the lyrics, are not objectionable. My objection is that the song is currently used on behalf of a movement of people who--while demanding U.S. citizenship as a "right" despite their flagrant violations of U.S. immigration laws--are too often not willing to assume the duties of U.S. citizenship, which begin when the citizen affirms: "I absolutely and entirely renounce and abjure all allegiance and fidelity to any...state...of...which I have heretofore been a subject..."

48 Comments


[David Kopel, May 7, 2006 at 1:28pm] 1 Trackbacks / Possibly More Trackbacks

Biased Media Coverage of the Illegal Alien May Day Rallies

That's the topic of my latest Rocky Mountain News column, which examines how the Denver papers glossed over the significance of May 1 for the rally date, ignored the role of A.N.S.W.E.R., pretended that the Reconquista does not exist, claimed that illegal aliens are merely demanding their "rights," defamed critics of illegal immigration by calling them "anti-immigrant," and too often used the ridiculous phrase "undocumented worker."

Regarding the final item, I wrote:

If the newspapers are going to continue using "undocumented worker," then the papers should, to be consistent, start writing that illegal users of morphine are really "undocumented patients," that bank embezzlers are "undocumented withdrawers," school truants are "undocumented vacationers," people who drive after their licenses have been revoked are "undocumented drivers," and 15-year-olds who use fake IDs to buy vodka are "undocumented drinkers."
On a completely different topic, the Independence Institute's new podcast series, iVoices, has a new 10 minute podcast by me discussing current trends in gun laws.

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[David Kopel, May 1, 2006 at 10:24am] 3 Trackbacks / Possibly More Trackbacks

Did Elaine Pagels Falsify a Quote?

Princeton University professor Elaine Pagels is widely quoted in the media as an expert on early Christianity; she is often a sympathetic advocate in favor of bogus documents about early Christianity, whether those bogus documents be ancient (such as the so-called Judas Gospel) or modern (such as The DaVinci Code). Jesuit Paul Mankowski, in his essay "The Pagels Imposture," suggests that Pagels' reputation for expertise is undeserved. Dissecting a Pagels passage about Ireneus (an early church father who wrote an essay against heresies), Mankowski shows that "Pagels has carpentered a non-existent quotation, putatively from an ancient source, by silent suppression of relevant context, silent omission of troublesome words, and a mid-sentence shift of 34 chapters backwards through the cited text, so as deliberately to pervert the meaning of the original." If the Mankowski essay is accurate, then there does appear to be reason for readers to be cautious about presuming the accuracy of the rest of Pagels' writings.

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[ David Kopel, April 18, 2006 at 6:16pm] 0 Trackbacks / Possibly More Trackbacks

Dark Skies Issue Paper:

Dark Skies legislation aims to protect the view of the night sky, by restricting some uses of night-time lighting. In a new Issue Paper from the Independence Institute, Michael Loatman and I argue in favor of Dark Skies ordinances, offer suggestions for particular ways to implement such ordinances, and caution against excessively stringent ordinances. We acknowledge that, although the night sky is beautiful and inspiring, research shows street lighting significantly reduces crime. We also urge that Dark Sky ordinances be prospective in application. Many thanks to all the VC readers who provided helpful comments after I posted a draft of the Issue Paper last fall.

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[ David Kopel, April 13, 2006 at 7:33pm] 0 Trackbacks / Possibly More Trackbacks

Jaruzelski charged with leading an armed criminal organization

Poland's former communist dictator, General Jaruzelski, has been criminally charged with leading "a crime related armed organization." That organization, of course, was the government of Poland.

To some people, the notion that a government could be a crime organization would seem strange; for example, Richard Nixon once declared "If the President does it, it's not illegal." One of the ways in which the Roman Empire showed its inferiority to the Roman Republic was by espousing the notion that the Princeps was above the law.

The better view, however, is the rule of law also applies to the government, and that governments can indeed degenerate into criminal organizations. In The City of God, Augustine wrote: "If justice be taken away, what are governments but great bands of robbers?" He told a story attributed to Cicero.

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, "What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor."
(The story appears in a section of Cicero's Commonwealth from which several pages of the original text have been lost, and only the final sentence remains.)

The same point was also made, centuries before, by the great Jewish scholar Philo of Alexandria. And as Don Kates, explained in an excellent article in Constitutional Commentary, the American Founders (and their British intellectual influences, such as Blackstone and Locke) thought that the right of self-defense was applicable against either a small band of criminals or against a larger groups of criminals which called themselves a "government."


[ David Kopel, April 8, 2006 at 1:29pm] 11 Trackbacks / Possibly More Trackbacks

The Judas Gospel:

Suppose that sometime around the year 3,800 A.D., someone wrote a newspaper that began: "According to a recently-discovered document, which appears to have been written sometime before 1926, Benedict Arnold did not attempt to betray George Washington and the American cause, as is commonly believed. Rather, Benedict Arnold was acting at the request of George Washington, because Washington wanted Arnold to help him create a dictatorship of the proletariat and the abolition of private property."

A reader who knew her ancient history would recognize that the newly-discovered "Arnold document" was almost certainly not a historically accurate account of the relationship between George Washington and Benedict Arnold. The reader would know that the terms "dictatorship of the proletariat" and "abolition of private property" come from a political philosophy, Marxism, which was created long after Washington and Arnold were dead. The reader would also know that the most reliable records from the 18th century provided no support for the theory that Washington or Arnold favored a dictatorship of the proletariat or the abolition of private property.

This Friday's coverage of the so-called "Gospel of Judas" in much of the U.S. media was appallingly stupid. The Judas gospel is interesting in its own right, but the notion that it disproves, or casts into doubt, the traditional orthodox understanding of the betrayal of Jesus is preposterous.

In the March 2 issue of USA Today, ancient Egyptian documents expert James Robinson correctly predicted that the owners of the Judas Gospel manuscript would attempt to release it to coincide with the publicity build-up for "The DaVinci Code" movie, but explained that the "gospel" was part of a genre of pseudo-gospels from the second century onward, in which the authors simply made up the stories. In contrast, virtually all serious scholarship about the canonical gospels (Matthew, Mark, Luke, and John) believes that they were written much closer to the events they describe--sometime in the first century a.d.

The influential Christian bishop Ireneus, in his treatise Against Heresies, written in 180 a.d., denounced the Gospel of Judas as the product of a gnostic sect called the Cainites. (Book 1, ch. 31, para. 1.)

The "Gospel of Judas" asserts that Jesus asked Judas to betray Jesus so that Jesus's spirit could be liberated from its earthly body. ("You will exceed all of them. For you will sacrifice the man that clothes me.") This statement is a classic expression of Gnosticism, and for that reason is antithetical to Christianity.

Unfortunately, the amazingly mendacious DaVinci Code presents a picture of Gnosticism that is wildly false — so it is helpful to set the record straight about what Gnostics really believed.

The roots of the Gospel of Judas and of Gnosticism go back to Marcion (approx. 100-160 a.d.). After he was excommunicated for heresy, he founded his own sect, the Marcionites. The Marcionites never grew as numerous as orthodox Christians, but for several centuries they were important rivals to the orthodox.

The Marcionites believed that the physical world was created by the angry god of the Old Testament, and that Jesus had been sent by a different god, who had nothing to do with the created world. Marcionites strove to avoid all contact with the created world. They were celibate, and ultra-ascetic. They did not even allow the use of wine at communion, insisting only on bread. Consistent with this highly ascetic view, they rejected war in any form. The Marcionites also denied the authority of the Old Testament, and most of the Gospels. Their only scriptures were portions of Luke, and ten epistles from Paul. (The idea of expunging the Old Testament from the Christian Bible was reintroduced by Adolf von Harnack, a very influential late-nineteenth and early twentieth-century liberal Protestant theologian. The Nazis enthusiastically adopted Harnack’s proposal.)

The great nineteenth-century Catholic theologian John Henry Cardinal Newman explained that Gnostics such as the Marcionites believed in "the intrinsic malignity of matter." The rejection of the Old Testament was necessary because the Old Testament is replete with stories about the wonders of the created world. In the first chapter of the first book of the Bible, God looked at his newly-created natural world, "and God saw that it was good." Then, "God created man in his own image, in the image of God created he him; male and female created he them....And so God saw every thing that he had made, and, behold, it was very good." The Song of Songs rejoices in a newly-married couple’s sensuous love. Ecclesiastes celebrates the natural cycle of life.

The New Testament agreed that the God who was the father of Jesus was the same God who had made the material world. In Acts, the Apostles prayed "Lord, thou are God, which has made heaven, and earth, and the sea..."

Newman also pointed out that "All the Gnostic sects seem to have condemned marriage for one or another reason." This is the opposite of the mainstream Christian view which, while recognizing that celibacy can be a special calling for some people, celebrates "holy matrimony." The Marcionites acknowledged that Jesus had been born of a woman, but claimed that the fetal Jesus never touched Mary’s body or received any nourishment from her womb.

The Marcionite and other forms of Gnostic pacifism have a reasonable internal logic. If the entire world and every human body is repulsively unclean (if one looks on the whole creation the same way that the Old Testament regarded a leprous corpse), then it makes sense never to lift a finger to defend a human being who is being attacked. Why try to preserve the evil human body from destruction? And how sinful it would seem, in the Gnostic view, to involve oneself in the material world so greatly that one would actually use a physical weapon.

The earliest Christians seem to have foreseen that something like Gnosticism would attempt to substitute itself for Christianity. In the First Epistle to Timothy, Paul specifically warned about the false teaching that would arise from "doctrines of devils." The evil doctrines that would arise in "latter times" would be "Forbidding to marry, and commanding to abstain from meats, which God hath created to be received with thanksgiving of them which believe and know the truth. For every creature of God is good, and nothing to be refused, if it be received with thanksgiving."

Timothy’s instructions also drew an important parallel between the carnal eating of meat and the carnality of marriage. Both are gifts which God created for humanity.

Gnosticism’s hatred of the created world sets it in direct opposition to Jewish and Christian doctrine from the first chapter of Genesis all the way through the New Testament.

The Gospel of Judas adds no historical information to the biography of Jesus, but it does provide additional information about the gnostic heresy which thrived in the mid-second century, and which has attracted many adherents today as well.

UPDATE: Fantastic Planet provides very interesting, thoughtful commentary about the Gospel of Judas, written by a modern Gnostic.

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[David Kopel, April 5, 2006 at 12:43am] 0 Trackbacks / Possibly More Trackbacks

Journal on Firearms & Public Policy now accepting submissions

I am the Editor of an interdisciplinary academic journal, the Journal on Firearms and Public Policy. The Journal is now accepting submissions for its next volume, our 18th year of publication. Some sample issues, in PDF, are here. (We hope eventually to put all volumes on-line.) Because we are interdisciplinary, articles may be written in a variety of academic and citation styles, including law, history, social science, philosophy, and so forth. The JFPP's circulation is vastly larger than most academic journals. If you would like to submit an article, or send a query about possible submission, please write me at the e-mail link on the lower-left column of my website.

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April 1, 2006 at 3:15am] 4 Trackbacks / Possibly More Trackbacks

Hurray for Jim and Sarah Brady

In a Friday interview with the Washington Post, Jim and Sarah Brady state: "In the first place, lets make it clear we don't want restrictions on law abiding citizens beyond making sure that all gun purchasers undergo a complete and comprehensive background check." (Although they do still support local bans on all firearms if "a locality has voted it in themselves", and state or national bans on firearms which they claim are weapons of war.)

The Brady interview marks, apparently, a repudiation of many proposals which the Brady Campaign (formerly known as Handgun Control, Inc., and before that known as the National Committee to Control Handguns) has previously advocated. Such now-repudiated proposals include:

The "Brady II" proposal from 1994 declaring that ownership of a certain number of guns or gun parts or ammunition constitutes an "arsenal" which should require special licensing and subject the owner to warrantless home inspections.

Mrs. Brady's 1993 advocacy of a "needs-based" licensing system, in which police could deny a prospective gun purchase under the theory that the buyer does not "need" the gun.

So-called "safe storage" laws enacted in several states and cities, thanks to effective lobbying from the Brady Campaign, requiring that guns be locked up, and, in many cases, inaccessible for emergency self-defense. Legislatures which enacted these laws should be informed that the Brady Campaign, although formerly supportive of such laws, no longer supports them.

"One-gun a month laws." Repealed in South Carolina, but still in effect in Maryland, California, and Virginia, as a direct result of Brady Campaign lobbying. With the Brady Campaign now repudiating gun rationing, these laws should be repealed.

Perhaps the Brady Campaign will withdraw from membership in IANSA (International Action Network on Small Arms) which promotes many extreme gun laws which go far beyond the Brady objective of comprehensive background checks; such laws include banning all handguns, banning all long guns which can shoot over 100 meters (that is, almost all rifles), banning all self-loading guns (the Brady Campaign has long insisted that only some self-loading guns should be considered "assault weapons"), and prohibiting gun ownership for self-defense.

If the Brady Campaign takes action to give meaning to its leaders' declarations in the Washington Post, the Campaign will deserve respect from all sides of the gun debate for supporting reform of overly restrictive laws which the Campaign now, apparently, acknowledges were mistakes.

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All George Mason, All the Time:

As the George Mason Patriots prepare for the Final Four, and loyal V.C. readers everywhere hope for the ultimate National Championship match-up of George Mason vs. UCLA, I thought that now would be a good time to note some of George Mason's contributions to the right to keep and bear arms.

On September 21, 1774, George Mason and George Washington co-founded the Fairfax County Militia Association, which Mason chaired. When Washington attended the May 1775 meeting of the Continental Congress, he wore the blue and buff uniform of the Fairfax County Militia; Congress appointed him General of the Continental Army and the blue and buff later became the colors of the Continental Army.

In January 1775, the Fairfax County Militia issued Mason's Fairfax County Militia Plan:

A well-regulated militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army...and we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Moulds, with a Cartouch box, or powder horn, and Bag for Balls.

1 George Mason, Papers 210-11 (1970), quoted in Stephen P. Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60 (1984).

Mason authored the Virginia Declaration of Rights (June 2, 1776), which stated in article 13:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Mason wrote the Richmond Antifederal Committee's June 11, 1788, proposal for Bill of Rights to be added to the United States Constitution. The 17th item stated:

That the People have a Right to keep & bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.

As the Virginia ratifying convention, Mason pointed out:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

He also warned the convention (June 14, 1788):

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia.... But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.

Like many anti-federalists, Mason worried that the present militia, composed of the entire people, might one day be replaced by a much narrower militia:

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. [Note: the final two concerns were partially addressed by the Fifth Amendment, which requires Grand Jury indictments before prosecutions for serious crimes, except "in the Militia, when in actual service in time of War or public danger" and by the Eighth Amendment, which forbids "cruel and unusual" punishments for anyone, including people in active militia service.] But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep & bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Some George Mason University publications involving the Second Amendment and related issues: Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); David B. Kopel, The Brady Bill Comes Due: The Printz Case and State Autonomy, George Mason University Civil Rights Law J.; Stefan B. Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).

Some notable George Mason University professors who have written about the Second Amendment: Stephen P. Halbrook (Asst. Prof. Philosophy, 1980-81); Walter Williams (Economics); Nelson Lund (Law), Patrick Henry Professor of Constitutional Law and the Second Amendment; Daniel Polsby (Dean, Law).

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[David Kopel, April 1, 2006 at 12:35am] 7 Trackbacks / Possibly More Trackbacks

Nebraska is 40th state to enact Shall Issue licenses for defensive handgun carrying

Yesterday the Nebraska legislature defeated a filibuster, and passed a Shall Issue law for licensing the carrying of concealed handguns by adults who pass a background check and a safety class. Nebraska's governor has said he will sign the bill into law.

The law does not preempt Omaha's ban on concealed carry; in this regard, the Nebraska law is like Pennsylvania's 1989 Shall Issue law, which allowed Philadelphia to refuse to issue permits to qualified citizens. Later, the statewide success of the Pennsylvania law convinced the legislature to eliminate the Philadelphia loophole. Omaha's loophole will probably be eliminated sometime within a decade.

Here is the nationwide status of the law regarding carrying of concealed handguns for lawful defense:

40 states generally allow such carrying:

No permit needed. 2 states do not require a permit for any adult who is legally allowed to possess a firearm. These are Alaska and Vermont. These states will issue a permit, however, upon application. (See discussion of “reciprocity,” below, for why a person would want a permit.)

"Do Issue." 3 states have statutes which reserve some discretion to the issuing law enforcement agency. These are Alabama, Connecticut, and Iowa. In these states, local law enforcement will generally issue a permit to the same kinds of persons who would qualify for a permit in a Shall Issue state.

"Shall Issue." 35 states, including all states not listed elsewhere. Nebraska (this week) and Kansas (last week) are the most recent states to join this list.

10 states generally do not allow such carrying.

"No Issue." Illinois and Wisconsin have no process for issuing concealed carry permits. Illinois allows certain persons (e.g., law enforcement, security guards) to carry without a permit. By a decision of the Wisconsin Supreme Court, no permit is needed for concealed carry in one's home or place of business. (See my Albany Law Review article for discussion of the Wisconsin and Rhode Island cases.)

"Capricious Issue." 8 coastal states give local law enforcement almost unlimited discretion to issue permits, and permits are rarely issued in most jurisdictions, except to celebrities or other influentials. These states are Hawaii, California, Delaware, Maryland, New Jersey, New York, Massachusetts, and Rhode Island.

The future:

The Wisconsin legislature has twice come within one or two votes of over-riding the Governor's veto of a Shall Issue law. In every state where Shall Issue laws have been blocked by a veto, a Shall Issue law has eventually been enacted. It seems reasonable to predict that Wisconsin will one day become a Shall Issue state.

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision of the Rhode Island Supreme Court suggests that this state of affairs is untenable. All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

The Delaware legislature is currently considering a Shall Issue law, and proponents seem optimistic. I suggest that Delaware's politics are, on the whole, more similar to the normal pattern of the 40 issuing states than to the 9 other hold-outs. I expect Delaware to enact a Shall Issue law, perhaps this year, or within the next several years. (UPDATE: The bill has passed one committee, and has enough co-sponsors to pass both houses; the Governor has not yet taken a position. As with Wisconsin, the existence of majority support in both houses makes Shall Issue a near-certainty to become law sooner or later.)

Of the remaining seven hold-outs, three states (New York, Illinois, and California) have previously passed a Shall Issue bill through a single house of the legislature. The passage suggests that Shall Issue, although hardly easy to enact into law, might be accomplished. In all seven of the final hold-out states, it would appear almost impossible to pass a Shall Issue law by a wide enough margin to over-ride a veto.

The pattern in almost all the states with Shall Issue laws has gone something like this: Initial discussions follow a predictable pattern, with proponents promising reductions in the crime rate, and opponents warning of Wild West shootouts. John Lott is discussed, pro and con, in infinite detail.

Over time, the personal testimony of female Shall Issue advocates sways some legislators. Other legislators, looking at the experience of other states, conclude that Shall Issue is, at the least, harmless; the lurid and sweeping predictions of opponents have not come true anywhere. The more states that enact Shall Issue laws, the more that legislators in a hold-out states become open to the idea that Shall Issue is not dangerous. Ohio, Minnesota, and Michigan are examples of states which are not considered strongly pro-gun, and whose enactment of Shall Issue legislation was possible only because so many other states had acted previously. As the number of Shall Issue states rises, so does the possibility of enacting Shall Issue in the dwindling number of hold-outs.

As momentum builds in a given state, the bill eventually attracts the support of all or almost all Republican legislators, and of almost all Democrats with a C rating or higher from the National Rifle Association. Many of the swing votes (the C-rated legislators, who say that they are pro-Second Amendment, but who often vote for gun control laws) are attracted by the objective standards of the Shall Issue system--which, unlike the Capricious Issue system--forbids gun carrying in certain places (e.g., hospitals), sets objective standards about who may not receive a permit (persons with various disqualifying conditions), and (in most states) requires a specific amount of firearms safety training.

Interestingly, Congress passed the Brady Bill 5-government-working-day waiting period for handgun purchases when there were only 22 states that had any kind of waiting period (and in many of those states, the wait was shorter than the Brady wait). As the number of states which regularly issue carry permits climbs into the 40s, the correlation of forces in Congress in favor of a national carry law also increases.

Brady passed in part because it was a "free" vote for some legislators. A legislator from, say, California, who usually but not always supported gun-owners could vote for Brady (earning praise from most of the media) while at the same time doing nothing that interfered directly with the gun purchase rights of his own constituents (since California already had a 15 day waiting period).

Conversely, a legislator from, say, Ohio, who usually but not always supports gun control, can now cast a "free" vote for a national carry law; he can curry some favor with pro-gun interests, while doing nothing to weaken the gun controls in effect in Ohio (which already has a Shall Issue law).

I am not arguing for or against the merits of a national Shall Issue law—merely commenting on the political realities.

For many decades, every state has recognized driver’s licenses issued by any other states. For concealed handgun licenses, the trend is clearly in that direction. As detailed by packing.org, today a permit issued by one state can be used in 28 states, through the principle of “reciprocity.” The new Kansas law will have reciprocity, while the Nebraska law does not. (Often, states with no reciprocity or weak reciprocity add a broader reciprocity provision several years after the enactment of the Shall Issue law.) A number of other states (e.g., Maine, N.H., Conn., Washington, Nevada), although having no reciprocity or limited reciprocity, issue their own permits to non-residents. (Nevada, however, requires that the training be conducted in Nevada.)

The continuing expansion of reciprocity also adds strength to the movement towards a federal Shall Issue law.

Significantly, Congress has also created the precedent, by enacting legislation which allows police officers and retired police from any state, after following certain procedures, to carry firearms in all fifty states.

In addition, I suggest that one day within the next 20 years, Congress and the President will decide that it is anomalous that residents of the District of Columbia are denied the defensive handgun carry rights which are enjoyed by the residents of all (or nearly all) 50 states; Congress will use its authority to legislate for the District of Columbia and will enact a Shall Issue system for residents of the District.

The modern trends towards Shall Issue was started when Florida became a Shall Issue state in 1988; previous Shall Issue bills had been vetoed by Governor Graham, but Governor Martinez signed the bill. The bill was the project of Marion Hammer, the head of Unified Sportsmen of Florida, who later served as President of the National Rifle Association. A few states (such as Washington and the Dakotas) already had Shall Issue laws, but the Florida law was the one that began a national movement.

Hammer was also the prime mover of the NRA’s Eddie Eagle gun safety program, in which a costumed character (similar to Smokey the Bear) teaches young children that they should only be around guns if there is a responsible adult present; if a children find an unattended gun, they should “Stop! Don’t touch! Leave the area! Tell an adult!” The Eddie Eagle program has now been taught to millions of children nationwide.

Hammer’s latest Florida success is Stand Your Ground legislation, affirming that victims of a violent felony do not need to retreat (even in a public area) before using forceful self-defense. As with Shall Issue, there are already some states, such as Utah, with strong protections of self-defense rights, but the 2005 Florida law may begin a national trend in which, every year, a few more states enact Stand Your Ground laws. Indiana and South Dakota enacted Stand Your Ground laws this year, and Georgia and Alabama may also do so soon.

UPDATE: Mississippi enacted Stand Your Ground (a/k/a "Castle Doctrine") this week; the bill applies to homes, cars, and one's place of business (and thus is weaker than the Florida model, just as some states have Shall Issue laws which are more restrictive than the Florida model).

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[David Kopel, March 30, 2006 at 2:05am] 0 Trackbacks / Possibly More Trackbacks

Iranian teenager to be executed for self-defense against a rapist:

Amnesty International reports this case from Iran:
On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court.

According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death.

Human rights activists have created an on-line petition to save Nazanin's life. I've signed the petition, and I urge all readers to do the same.

Amnesty International points out that the execution would violate Iran's obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

However, the AI argument appears to have a significant weakness. When ratifying the CRC, Iran also made the following reservation: "The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect." I have not found information indicating that Iran made any reservation when ratifying the ICCRR, which also bars executions for crimes committed when the perpetrator was under the age of 18.

According to a modern summary of Islamic law:

There is a natural right to self-defense. One may defend oneself from a criminal act that poses an imminent threat to person or property, but only necessary force may be used. An intruder who might be repelled with a stick may not be shot and killed; neither may one pursue an intruder who has retreated and is no longer a threat. Violation of the limits of self-defense is aggression and renders one criminally liable.

Matthew Lippman, Sean McConville & Mordechia Yerushalmi, Islamic Criminal Law and Procedure: An Introduction(Westport, Conn.: Praeger, 1988), p. 56.

The above-quoted scholars appear to be consistent with the view of the nineteenth century Islamic jurist Ulaysh, who "wrote that all jurists have always agreed that Muslims have the right to defend their life and their property." (Quoted from Khaled El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge Univ. Pr., 2001), pp. 334-35.) El Fadl's quote is consistent with the practice of many Islamic nations of denying dhimmi (non-Muslims) any right to defend themselves against Muslims, or to possess arms. (See Bat Ye'or's books for details.) However, the dhimmi exception to self-defense does not appear to be relevant in the Nazanin case.

So I have two starting questions for commenters: For those of you who can read Persian, is there any evidence from the Iranian press, or other media, suggesting that Nazanin was not actually acting in self-defense, or that her use of deadly force was legally excessive?

Second, for readers familiar with Shari'a law, are there any legal precedents suggesting that a female teenager acted by stranger rapists would not possess the ordinary Muslim's right to self-defense?

Third--and this question is for everyone--are there international law arguments that the Iranian government cannot lawfully abrogate the right to self-defense? Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5, 1955), art. 2 (2)), and the Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9, art. 31) both recognize a right of self-defense, but of course neither document is applicable to domestic Iranian law.

Are there other international treaties which recognize a right of personal (rather than national) self-defense? Are any of these applicable to Iran?

In addition to positive international law, a defender of Nazanin might also argue from customary international law. Below is a sketch of one such argument, based on my own research. I invite commenters with international law expertise to amplify, correct, and otherwise suggest improvements or flaws in the argument.

1. Even in the absence of positive enactments, humans have certain fundamental rights which no government can violate. (See, e.g., Grotius, Vittorio, Locke, Declaration of Independence).

2. In extreme cases, a government which violates those fundamental rights can be overthrown, and the perpetrators of the rights violation can be punished. A person who denies the previous sentence must necessarily conclude that the Nuremberg and Tokyo war crimes trials were illegal, since, for example, there was no positive law forbidding the genocide at the time the Germans and Japanese perpetrated genocide.

3. Even if ex post facto principles about positive law made it unjust to punish some of the Germans and Japanese, it was still lawful for the Allies (even putting aside issues of national self-defense and treaty obligations towards countries such as Poland) to attempt to interfere with on-going violations of fundamental human rights by the Japanese and Germans.

4. Even if there were no right to interfere or punish, a person in, say 1938, could correctly say "The German and Japanese governments are in violation of international law, because they are violating many fundamental human rights of their subjects, including rights which have always been regarded as fundamental by the vast majority of mankind throughout recorded history."

5. Self-defense is a fundamental human right, and has been so regarded by the vast majority of mankind throughout recorded history. For example, the right of self-defense is recognized by ancient and modern Jewish law, by the Catholic law which formed the basis of Western law (and which was predicated on the recognition of self-defense rights by ancient Greece, ancient Rome, and the Byzantines), by the great Protestant religious philosophers who shaped the United Kingdom, by the American revolutionaries, and by all the major religions of Asia.

Note: Although some Christians and Buddhists have believed that a truly enlightened person should not engage in self-defense, non-resistance was always presented as a higher moral choice, and there was no suggestion (at least until quite recently in the West), that the government should forbid self-defense.

6. The above litany of sources recognizing a right of personal self-defense is illustrative, rather than exhaustive. (Commenters are invited to supply additional sources, of the type traditionally cited in international law.)

7. The right of self-defense has been recognized by the overwhelming majority of all legal systems throughout human history. The only known exceptions are those which obviously relate to very special circumstances (e.g., prisoners against guards; soldiers against superior officers), or which, by their very nature, are so odious as to shock the conscience (e.g., Japanese peasants forbidden to resist Samurai; tyrannies; slaves; persecuted religious or ethnic groups). The fact that no known legal system has (outside of special cases) ever denied self-defense rights except in circumstances which are self-evidently odious is further proof that customary law has, from time immemorial, recognized a right of self-defense.

8. The parameters of the right to self-defense have varied over time, but, at the very least, they have always included the right of a chaste woman to resist rape by strangers who have no relationship of any sort with the woman or her family. (The historical exceptions to a woman's right to resist rape are in themselves odious, but they appear to be irrelevant to the Nazanin case.)

9. Deadly force may be used to resist rape, if no lesser force will suffice.

10. The right to resist rape also includes the right to use force to protect a close relative from being raped.

The above statements represent my current understanding, but I welcome clarifications from commenters about circumstances in which the above statements might be untrue--such as legal codes which forbade self-defense, or forbade deadly force as a last resort against a rapist.

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[Note: The entries for March 20-24 are from a guestblogging appearance at Overlawyered.com]

Licensed Handgun Carry Wins in Kansas

Over-riding the Governor's veto, the Kansas legislature has enacted a "Shall Issue" law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.

Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, Illinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.

In Wisconsin, a Shall Issue bill has been vetoed twice, with the vetoes sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law--although sometimes the process can take a while.

So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possibility of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local governments must issue carry permits to qualified applicants.

So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.

Every year, more and more Shall Issue states create "reciprocity" with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)

As the combined total of "no issue" or "whimsical issue" states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control -- one that regulates firearms carrying but does not infringe the right to self-defense.

For more on the Kansas law, see this excellent article in the Wichita Eagle.

Posted by Dave Kopel, March 24, 2006, at 03:02 AM | | Comments (0) | TrackBacks (0)


Sensible Public Health

Here's a story about a public health intervention that:

1. Appears to have reduced the rate of sexually transmitted diseases.
2. Especially by encouraging people to have a check-up.
3. Appears to have been fairly inexpensive.
4. Involved no coercion.

The Bay Area Reporter offers a story about a costumed character who promotes sexual disease control (sort of like Smokey the Bear encourages people to prevent forest fires). But the particular costume would scandalize many people. Read the whole article before you make up your own mind.

Posted by Dave Kopel at 01:24 AM | | Comments (1) | TrackBacks (0)


Major Development in Syria

The opponents of the Assad regime have announced a united front coalition. The expatriate Syrian blogger Ammar Abdulhamid analyzes the coalition, and concludes that, even though the coalition leaders are hardly white knights, the coalition offers the best chance to lead a transition to a post-Assad state that does not degenerate into warlordism.

Posted by Dave Kopel at 12:46 AM | | Comments (0) | TrackBacks (0)


Don't Mess with Texas Morals Police: Tavern Patrons Arrested for Intoxication

"Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said," according to Reuters. Public intoxication is illegal in Texas, and the authorities contend that their preemptive arrests will prevent people from driving drunk or committing other offenses. HT Peaktalk.

Posted by Dave Kopel at 03:34 AM | | Comments (2) | TrackBacks (1)


Easier Forfeiture of Property: The New Federal Rules of Civil Procedure

According to Forfeiture Endangers American Rights, the U.S. Dept. of Justice is proposing revisions of the Federal Rules of Civil Procedure which would facilitate property forfeiture. The FEAR site links to the new draft rules, and to critiques of those rules.

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Human Rights = Allah

The Brussels Journal points out the close resemblance between the Arabic word for "Allah" and the logo of the UN Human Rights Commission, which may have been imposed by " a high-ranking Muslim UN official ." Even if "Allah" is not the official UN Human Rights Commission logo, the UN acts as if it were. Brussels Journals points to "last week's common declaration signed by EU Foreign Policy Coordinator Javier Solana, UN Secretary-General Kofi Annan and Ekmeleddin Ihsanoglu, the Secretary-General of the Organisation of the Islamic Conference (OIC). The three men pledged to rewrite the UN Human Rights Charter to 'protect the sanctity of religions and the prophets.'"

Posted by Dave Kopel at 02:32 AM | | Comments (0) | TrackBacks (0)


Today's Courageous Feminists

Cinnamon Stillwell observes International Women's Day by observing that:
the real radical women in the world go largely unremarked by the feminist movement. Today's true heroines are those who do battle with the gender apartheid, violence and oppression practiced against women in the Muslim world. There, women face not just phantom infringements to their civil rights and perceived slights to their sensitivities, but threats to their lives.
Read the whole article for an inspiring litany of women putting lives on the line by speaking out against Islamist oppression.

Posted by Dave Kopel March 22, 2006, at 04:49 PM | | Comments (0) | TrackBacks (0)


Whoopie Cushion Chair Prompts Lawsuit

Today's Times of London reports an employment law claim by a teacher who chair made flatulent noises whenever she moved. The teacher, who resigned her position, is claiming constructive dismissal, and asking for one million Pounds in compensation.
Asked why she did not sort out the problem, she told the tribunal: “It’s a health and safety issue for an employer to ensure you have a comfortable chair.”

A chair that forces a person into bad posture might well be a health and safety issue, but a chair that merely causes embarrassment is plainly not a health and safety issue -- although the chair should still be replaced.

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Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions

Students for Sensible Drug Policy and the American Civil Liberties Union have filed a lawsuit alleging that the federal law which denies federal financial aid to any student with a drug law conviction is unconstitutional. Personally, I think the federal law is atrocious, and would vote to repeal it. But I think the prospects for victory in court are very slim. The SSDP press release points out several good policy arguments, but raises only two legal points:
The law punishes individuals twice for the same infraction. Affected students have already been dealt with by the criminal justice system. Taking away their access to education after they’ve already paid their debt to society is unnecessary. This violates the "double jeopardy" clause of the Fifth Amendment.

Commenters are welcome to correct me if I'm wrong, but I don't think that the Fifth Amendment has ever been interpreted to prohibit governments from choosing to make persons with criminal convictions ineligible for welfare programs, including student aid for higher education.
Second, SSDP argues:

Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse. Forcing students convicted of drug charges to drop out of school makes them more likely to fall into drug abuse or commit crimes (thus becoming costly burdens on the criminal justice system) and less likely to become productive taxpaying citizens (thus reducing the nation’s economic productivity). Congress has no rational basis to attach student aid eligibility to drug convictions, especially since murderers, rapists, burglars, and arsonists can still receive financial aid. This violates the equal protection guarantee of the Fifth Amendment's "due process" clause.

The first half of the paragraph is really a policy argument. The second half -- that it is irrational to deny aid to a person with a misdemeanor marijuana conviction, while giving aid to a person with a felony rape or arson conviction -- seems more plausible. In an article in the Journal of Contemporary Law, I have argued for taking the rational basis test seriously. But whether courts will do is uncertain.

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Health Insurance Doesn't Matter. Medicaid Should be Scrapped:

John Goodman, of the National Center for Policy Analysis, comments on a new study published in the New England Journal of Medicine: "Who is at Greatest Risk for Receiving Poor-quality Health Care?" Contrary to many previous studies, the NEJM study found that, in Goodman's words:
- Among people who seek care (actually see a doctor), there is virtually no difference in the quality of care received by the insured and uninsured.

- There is also very little difference in the care provided by different types of insurance - Medicaid, managed care, fee-for-service and so forth.

The study is consistent with Dallas-area data reported by Goodman in his book Lives at Risk. Goodman summarizes the implications of the NEJM study:

The entire Medicaid program (at a cost of $1,000 per person for every man, woman and child in the country and a huge crowd out of private insurance) is predicated on the conventional wisdom that being insured matters. Now we know that what really matters is seeing a doctor. Two deterrents are rationing by waiting and physician fees. Both hurdles could be overcome with funded health savings accounts.

Another conventional wisdom is that the uninsured need sky-is-the-limit coverage just like the United Auto Workers. But since the low-income uninsured have few assets to protect, why do people with modest means need such expensive coverage? They don't. A scaled down plan could give them ample choice of doctors and allow entry into the system for much lower premiums.

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Stand Up to Islamism

Twelve leading writers from the Muslim world signed the Manifesto of 12: Together Facing a New Totalitarianism:
After having overcome fascism, Nazism, and Stalinism, the world now faces a new global totalitarian threat: Islamism.

We -- writers, journalists and public intellectuals -- call for resistance to religious totalitarianism.

Instead, we call for the promotion of freedom, equal opportunity and secular values worldwide.

The necessity of these universal values has been revealed by events since the publication of the Muhammad drawings in European newspapers. This struggle will not be won by arms, but in the arena of ideas. What we are witnessing is not a clash of civilizations, nor an antagonism of West versus East, but a global struggle between democrats and theocrats.

Like all totalitarianisms, Islamism is nurtured by fears and frustrations. The preachers of hate bet on these feelings in order to form battalions destined to impose a world of inequality. But we clearly and firmly state: nothing, not even despair, justifies the choice of obscurantism, totalitarianism and hatred.

Islamism is a reactionary ideology which kills equality, freedom and secularism wherever it is present. Its success can only lead to a world of greater power imbalances: man’s domination of woman, the Islamists’ domination of all others.

To counter this, we must assure universal rights to oppressed people. For that reason, we reject “cultural relativism,” which consists of accepting that Muslim men and women should be deprived of their right to equality and freedom in the name of their cultural traditions.

We refuse to renounce our critical spirit out of fear of being accused of “Islamophobia,” an unfortunate concept that confuses criticism of Islamic practices with the stigmatization of Muslims themselves.

We plead for the universality of free expression, so that a critical spirit may be exercised on every continent, against every abuse and dogma.

We appeal to democrats and free spirits of all countries that our century should be one of enlightenment, not of obscurantism.

Now, the 12 signers are the subjects of a death threat. One of the 12, Irshad Manji, is asking people to come to her website and add their own names to the Manifesto. I just did, and I urge you to do the same.

Journal on Firearms & Public Policy now accepting submissions

I am the Editor of an interdisciplinary academic journal, the Journal on Firearms and Public Policy. The Journal is now accepting submissions for its next volume, our 18th year of publication. Some sample issues, in PDF, are here. (We hope eventually to put all volumes on-line.) Because we are interdisciplinary, articles may be written in a variety of academic and citation styles, including law, history, social science, philosophy, and so forth. The JFPP's circulation is vastly larger than most academic journals. If you would like to submit an article, or send a query about possible submission, please write me at the e-mail link on the lower-left column of my website.

Posted by Dave Kopel on March 21, 2006 07:04 PM |


Should Health Care Workers be Able to Refuse Treatment to Gun Owners?

That's the polling question of the day in Canada, on morning television. The story involves an elderly woman in Nova Scotia who suffers from multiple sclerosis and cannot walk. She was receiving health assistance from employees of Northwood Home Care. One morning, the Northwood sent an employee who had never been to the home before. In the home, the worker saw an unloaded hunting rifle, with the safety on, and a trigger lock.

The worker immediately fled the home in fear, because the locked, unloaded rifle was not in a gun cabinet. The elderly woman's husband is a hunter, whose gun is lawfully registered, but he had forgotten to return the locked, unloaded gun to his gun cabinet.

Northwood Home Care refuses to send employees back to the home. According to a Canadian Press Association report, "The agency said its workers fear for their safety because of the hunting rifles." ("Rifle kills home care," Halifax Chronicle Herald, March 21, 2006.)

The health care workers themselves would seem to be in need of mental health treatment. The Northwoods workers plainly suffer from a serious case of hoplophobia. (From the Greek word "hoplo", meaning "weapon.")

Just as many normal people dislike spiders, many other normal people dislike guns. A few mentally ill people have such debilitating fear of spiders (arachnophobia) that their fear impedes their functioning in their daily lives. Similarly, hoplophobes suffer from such extreme and irrational fears of guns that their daily functioning is impaired. A health care worker who refuses to provide health care would obviously be suffering from impairment of her normal daily functioning.
I hope that the publicity surrounding the incident persuades Northwood Home Care (Halifax, N.S.) to resume providing health care to the elderly woman, and also encourages Northwood to seek mental health treatment for the hoplophobics among its employees.


Stand Your Ground

Back in 1987, Florida set off a national trend by enacting a law which allows adults with a clean record, who pass a safety class, to obtain a permit to carry a concealed handgun for lawful defense. Although some states already allowed concealed carry, Florida's 1987 law led to the concept spreading nationally, so that today 38 states have handgun carry laws similar to Florida's. Now, a new Florida trend is spreading: "Stand your ground" laws.

Last year, Florida enacted a statute stating that victims of a violent felony attack do not have to retreat from the aggressor (even in a public place), and can use deadly force. Now, Indiana Governor Mitch Daniels has signed a Stand Your Ground law in his state, and the South Dakota legislature has enacted a similar law.

Because most Americans intuitively agree with the principle of self-defense, opponents of the law, such as the Brady Center, have resorted to making silly claims, such as asserting that the laws allow "a person who just feels something bad is going to happen to open fire in public." A careful look at the Florida model, which I blogged about last year, leads to the conclusion that the Brady Center's claims are unmerited.


One-stop Shopping for Gun Thieves

In today's National Post, Canadian columnist Lorne Gunter reports an interview with John Hicks, the former Webmaster for the Canadian Firearms Centre (CFC). The CFC is the national gun control center, which is supposed to maintain the registry of all rifles and shotguns which was created by the former Liberal government in 1995 legislation. According to Gunter, Hicks "contends that anyone with a home computer, an Internet connection and a little patience can hack into the national firearms database and find out who owns guns, where they live and what makes and models they possess." The CFC computers are known to have been breached 306 times between 1995 and 2003. The computer registry has cost over half a billion Canadian dollars so far, and still doesn't work. Gunter reports that last December, the contractor "flew in folks from around Canada with the intention they would stay in Ottawa and do testing for six weeks." But "After one day, all were sent home because the application crashed over 90 times with over 30 Severity-1 crashes." The new Conservative Prime Minister Stephen Harper has promised to abolish the dysfunctional long gun registry, and spend the savings on the police; however, Harper leads a minority government so it is not clear if he will be able to accomplish his objective. A research paper by professor Gary Mauser for the Fraser Institute provides the full story on the long gun registry debacle.

March 17, 2006 at 7:54pm] 0 Trackbacks / Possibly More Trackbacks

Swell New Podcasts

The Independence Institute has started a new podcast series, iVoices. You can listen on-line, or download mp3 files. We plan to publish many, many podcasts, but so far, we have three available: I discuss the Internet and New Media, and offer some cautions about triumphalist claims about the alleged demise of the traditional media. Our Campus Accountability Project Director Jessica Corry reports her experience on the University of Colorado's Blue Ribbon Diversity Panel, where diversity of thought was forbidden. And Senior Fellow Dennis Polhill discusses petition rights.

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March 16, 2006 at 4:16pm] 1 Trackbacks / Possibly More Trackbacks

Armed Resistance to the Holocaust

That's the title of my forthcoming article in the May 2006 issue of NATIV, the journal of the Ariel Center for Policy Research. (The Ariel Center is a think tank in Jerusalem; its main audience is Israeli policy intellectuals and policymakers.) The final article will be published in Hebrew and English. In the meantime, you can read an English draft in PDF or HTML. Comments and suggestions for improvement are welcome.

Summary: Contrary to myth of Jewish passivity, many Jews did fight back during the Holocaust. They shut down the extermination camp at Sobibor, rose up in the Warsaw Ghetto, and fought in the woods and swamps all over Eastern Europe. Indeed, Jews resisted at a higher rate than did any other population under Nazi rule. The experience of the Holocaust shows why Jews, and all people of good will, should support the right of potential genocide victims to possess defensive arms, and refutes the notion that violence is necessarily immoral.

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March 15, 2006 at 9:47pm] 2 Trackbacks / Possibly More Trackbacks

Irish Jews can now wear chainmail and leather armor

Thanks to an astute reader on a previous post, who pointed out that Ireland has repealed its law, enacted in 1181, which forbade Jews from possessing armor.

The Irish law was almost certainly based on the Assize of Arms, which was promulgated by England's King Henry II in 1181. At the time, England claimed sovereignty over Ireland, so presumably the Assize remained part of Irish laws, even after Irish independence was recognized in 1921.

Other sections of the Assize of Arms required freemen to possess weapons and armor, with the particular implements depending on the subject's socioeconomic rank. The Assize was one of many examples of the English policy of relying on a widely-armed populace for national defense.

The Jewish section of the Assize stated:

7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk (an armored shirt made of mail or leather), but he shall sell it or give it away or alienate it in some other way, so that it shall remain in the king's service.
Read narrowly, the Assize still allowed Jews to possess plate armor for their chests (although such armor, invented during the Roman Empire, had temporarily fallen out of use when the Assize was written), and to possess any form of armor for their arms, legs, and head, as well as to possess shields and any type of weapon.

For a burgess (citizen of a borough; similar to bourgeois), the Assize also specified the maximum amount of arms and armor which could be possessed.

Shari'a law forbids dhimmis (Jews, Christians, and sometimes Hindus) from exercising a wide variety of civil rights, including repairing the outside of religious buildings, possessing arms, and engaging in self-defense against Muslim attackers. (See Bat Yeor's fine books for details.) Restrictions on Jewish possession of arms were common in many European Christian countries as well, and of course were also a characteristic of National Socialist law.

Some questions for commenters: do any states currently have specific laws placing special restrictions on weapons possession by Jews? Or on adherents of other religions? Is the Assize of Arms still part of the positive law of the United Kingdom, albeit an unenforced law?

And, BTW, thank you to the commenters on my information-seeking posts from the past couple weeks; you have helped advance public knowledge of various subjects, corrected errors, and demonstrated the enormous intellectual firepower of the VC's readership.

31 Comments


March 15, 2006 at 12:14am] 0 Trackbacks / Possibly More Trackbacks

Marc Lepine bleg:

The perpetrator of the infamous Dec. 6, 1989 massacre at the Ecole Polytechnique in Montreal was born on October 26, 1964. Does anybody know where he was born?

Lepine's father was Rachid Liass Gharbi--an alcoholic, wife-beating, child abusing Algerian Muslim who had immigrated to Canada. He often said that women’s only purpose was to serve men. Lepine's mother Monique was a French-Canadian former nun. Does anyone know more about the backgrounds of either Rachid or Monique?

Please supply answers in the Comments. Thanks.

35 Comments


March 14, 2006 at 6:01pm] 1 Trackbacks / Possibly More Trackbacks

Purim

Today is the second day at of the Jewish festival of Purim. Historians debate whether the events described in the book of Esther, on which the Purim festival is based are historically accurate, but in any case, the story is interesting and teaches some useful lessons.

According to the Book of Esther, during the reign of King Ahasuerus in Babylon, the king decided to pick his wife by holding a beauty contest. The winner and new queen was a beautiful young woman named Esther. She was Jewish, but the king did not know it.

A wicked counselor named Haman convinced the king to order the destruction of all the Jews. Messengers were dispatched throughout the kingdom announcing the extermination of the Jews to take place several months later. Haman had picked the most auspicious date by casting lots.

Esther’s wise uncle Mordecai urged her to petition the king, but Esther was afraid that she too might be killed. Mordecai replied that Esther, despite her privileged position, would not escape what would befall the rest of the Jews. Moreover, it might be that Esther had been elevated to the queenship for this very moment.

So Esther invited the king and Haman to a banquet, a banquet which Haman thought was in his honor. At the banquet, Queen Esther told the king how Haman was plotting against Mordecai the Jew, who had earlier saved the king from an assassination attempt. She then accused Haman to trying to kill her, for, Esther confessed, she was a Jew.

The enraged king ordered Haman to be hanged—-ironically, on the gallows that Haman had been building for Mordecai.

According to Babylonian law, a king’s decree could not be rescinded. So the king sent forth throughout Babylon a second decree, allowing the Jews “in every city to gather themselves together, and to stand for their life, to destroy, to slay, and to cause to perish, all the power of the people and the province that would attack them.” The language precisely matched the previous decree which had ordered the destruction of the Jews.

On the day that the destruction of the Jews was scheduled to begin, the people who hated the Jews attacked. The Jews fought back, assisted by provincial governments which sought Mordecai’s favor. “Thus the Jews smote all their enemies with the stroke of the sword, and slaughter, and destruction, and did what they would unto those that hated them.”

Forever after, Jews have celebrated the Feast of Purim (“lots”). It is a joyous springtime festival, full of children’s games.

Esther is the only book of the Bible in which God is not mentioned. Yet it is easy enough to see who is doing God’s work: wise Mordecai, brave Esther, and the fighting Jews throughout Babylon.

On Purim, Jews are supposed to drink until they can no longer distinguish "Blessed be Mordecai" from "Cursed be Haman." Some people say that this means a person should drink until he can no longer do the mathematical calculations with the Hebrew letters showing that Mordecai and Haman each add up to the same value, namely 520. (All Hebrew letters have a numeric value.)

Other people say that because the blessing of Mordecai and the cursing of Haman both manifested God's goodness, a person should drink until he realizes the fundamental similarity of God's superficially diverse good works.

Whether or not there was a historical Queen Esther, history shows that Esther and Haman are archetypes who will always be with us. When the Nazi war criminal Julius Streicher was being dragged to the gallows in his underwear, he screamed “Purim Feast, 1946.” (Abram L. Sachar, The Redemption of the Unwanted: From the Liberation of the Death Camps to the Founding of Israel (N.Y. St. Martin’s Pr., 1983), p. 123.) Streicher was publisher of the ultra-anti-Semitic weekly newspaper Der Stuermer. He was convicted of crimes against humanity for inciting the murder of Jews. Even with the context of Nazi politics, Streicher was an extremist in his early, frequent, and insistent demands for Jewish extermination. As an inciter of genocide, Streicher did have much in common with Haman.

Many Jewish families and communities celebrate an additional Purim based on their own miraculous deliverances. For example, according to the 1991 book Purim: Its Observance and Significance (Mesorah Pubs.), the Jews of Algiers celebrate an additional Purim to commemorate the Turkish defeat of a 1775 Spanish invasion (retaliation for Algerian raids on the Spanish coast), which saved the Jewish quarter from almost certain destruction by the Spaniards.

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March 13, 2006 at 10:44pm] 0 Trackbacks / Possibly More Trackbacks

Grotius bleg:

The great Dutch philosopher Grotius, one of the founders of modern international law, wrote that foreign humanitarian intervention was lawful to "to stop the maltreatment by a state of its own nationals when that conduct is so brutal and large-scale as to shock the conscience of the community of nations." I found the quote in a secondary source (Commentary magazine). Does anyone know the original cite? The quote does not appear in the law review database in Westlaw, nor in the Allcases database.

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[David Kopel, March 8, 2006 at 12:44pm] 0 Trackbacks / Possibly More Trackbacks

Texas Primary Results and the Right to Arms:

Yesterday's Texas primary resulted in a major win for Second Amendment supporters at the Congressional level, with mixed results in state legislative races. U.S. Democratic Rep. Henry Cuellar faced a stiff challenge for Ciro Rodriguez, whom Cuellar had defeated in the previous election by only 50 votes. Cuellar has an A rating from the National Rifle Association, whereas Rodriguez received a C-.

The race in this heavily Hispanic and Democratic district was closely watched nationally as an indication of whether Hispanic politics were trended towards the center (Cuellar is slightly more conservative than Bill Clinton was when he was governor of Arkansas) or towards the hard left, with Rodriguez receiving substantial funds from DailyKos donors.

Last night, Cuellar won by nearly 5,000 votes, and received 58% of the votes cast. The results bode well for the national Democratic party, as the southern and western wings of the party continue to develop moderate candidates who can appeal to America's tens of millions of gun-owning voters.

The only other U.S. House primary in which the NRA was involved was in Tom Delay's district, where the A+ rated Delay easily defeated three challengers who did not answer the NRA's questionnaire.

Cuellar's victory contrasted with the defeat of A rated incumbent Democratic State Senator Frank Madla by F rated Carlos Uresti in the 19th district. In other state legislative Democratic primaries, NRA-endorsed candidates had mixed success. The NRA-backed candidates won almost all of the Republican primaries.

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[David Kopel, March 8, 2006 at 8:46pm] 1 Trackbacks / Possibly More Trackbacks

BATFE Director now needs Senate Confirmation

If I were in Congress, I would have voted against the Patriot Act and its re-authorization. Although the Act does provide important anti-terrorist tools, I believe it is extremely overbroad, in part because so many of the special anti-terrorism powers are not limited anti-terrorism, but can be used to enforce any federal law. But one of the civil liberties improvements in the revised Patriot Act is contained in section 504. That section changes 6 U.S.C. 531(a)(2), so that the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosive now requires Senate confirmation of his or her appointment. Even if BATFE did not have a troubled history on civil liberties issues (some of which is detailed in my book No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It), it makes sense for the head of any major federal law enforcement agency to be subject to the checks and balances of Senate confirmation.

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[David Kopel, March 6, 2006 at 6:28pm] 0 Trackbacks / Possibly More Trackbacks

Is Israel in Violation of International Law?

Last week I blegged for information about this question, set forth my preliminary understanding of the issue, and enjoyed reading many excellent comments, pro and con, on the topic. I would now like to ask commenters for more analysis on two precise issues.

It seems to me that the strongest argument that Israel is in violation of international law is based on United Nations Security Council Resolution 446. Passed 12-0 (with the U.S. abstaining), the 1979 Resolution tells Israel to stop building settlements in the West Bank and Gaza. (The latter were abandoned in 2005, are so are now irrelevant to my question.) Arguments can be made that the Resolution is predicated on a defective reading of the Fourth Geneva Convention, but there is a good counter-argument that even if the Security Council's resolution is wrong, the resolution is still binding, as a matter of international law.

To be precise, Security Council resolutions adopted under Chapter VII of the U.N. Charter are binding, whereas resolutions adopted under Chapter VI are not. Resolution 446 does not state its source of authority; Wikipedia's discussion section contains some pro/con arguments on whether 446 is a Chapter VII resolution.

A second international law argument against Israel is that the West Bank settlements and the defensive barrier both violate the Fourth Geneva Convention. A key weakness in this argument, though, is that the Convention by its own terms applies only "between two or more of the High Contracting Parties."Israel is a High Contracting Party, but there appears to be no other High Contracting Party which can claim that Israel's West Bank policies violate the Party's Geneva Convention Rights. (Jordan is exercised sovereignty in the West Bank from its 1948 invasion of Israel until Jordan attacked Israel again in 1967, and was thrown out of the West Bank. Jordan later abandoned all claims of sovereignty to the West Bank.)

Israel has unilaterally said that it will follow parts of the the Fourth Geneva Convention regarding the West Bank, and Israel contends that it is following the Convention; but this argument seems less relevant, legally speaking, than whether Israel is legally obliged to obey the Fourth Geneva Convention.

The arguments that Israel has a legal obligation to do so seem extremely weak. For example, some people cite Article 1 of the Convention ("The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.") as if it makes a nullity of Article 2's specific delineation of the only circumstances in which the Convention is legally applicable.

The article Laurence E. Rothenberg & Abraham Bell, Israel's Anti-Terror Fence: The World Court Case(2004), seems to make a quite persuasive case that the Fourth Geneva Convention is not legally applicable to the West Bank, even though I do not find every single argument in the article to be persuasive.

So I am asking commenters for legal analysis of whether Sec. Res. 446 is a binding Chapter VII resolution, and whether the Fourth Geneva Convention is legally applicable in the West Bank. Please focus on the legal issues, rather than pro/con arguments about Zionism etc. Most commenters for my previous post did a good job of keeping a legal focus, except for one repeat-offender ranter who had to be barred.

Related Posts (on one page):
  1. Is Israel in Violation of International Law?
  2. Legal Status of Israel's Border and its Defensive Barrier:
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[David Kopel, February 28, 2006 at 3:42pm] 1 Trackbacks / Possibly More Trackbacks

Doctors and Guns:

Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:

A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:... 22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.
The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.

First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.

Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.

The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech issues, outside the context of advertising, regarding professional regulation.

Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.

The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.

I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.

Let me address some of the arguments which commenters offered regarding the bill.

Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.

The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.

However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.

One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)

Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.

Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disarmament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could.

Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and would be less safe in their homes as a result. There is sufficient evidence for a reasonable legislator to conclude that physician anti-gun counseling is junk science at its worst. (Click here for one example.) Reasonable legislators can differ, of course; I am just pointing out what a reasonable legislator could vote for the bill.

Another issue raised by commenters was gun registration. Again, in the 1910 model of medical practice, records about patient gun ownership would be widely diffused among many independent physicians. The record-keeping by individual physicians would not amount to a widespread registration system.

In contrast, today there is a very powerful trend towards the centralization of medical data. As some commenters pointed out, the centralizing trends are encouraged by insurance companies, health care corporations, and the government. Physician questioning and about firearms usually takes place in the context of the physician filling out a survey which becomes part of the patient's permanent medical record. There are many circumstances under which health survey data by a physician may be centralized by entities other than the physician. Federal law makes patient records available to law enforcement authorities under some circumstances.

There is no denying the historical facts that in the United States and in other countries, gun registration records have sometimes been used for confiscation. A person who wants strong protection the right to arms would generally favor preventing the accumulation of data which might facilitate gun confiscation, even if the risk of gun confiscation at present is very low.

Putting the confiscation risk aside, registration is, in itself, harmful to the right to arms. Even if there were no possibility of confiscation, constitutionally-sensitive people would oppose the creation of centralized lists regarding any aspect of a person's exercise of her constitutional rights. You shouldn't be put on a government list--or on the list of a big corporation which is heavily funded by the government and whose records are readily subject to government inspection--just because you exercised a constitutional right. That is one reason that Congress in 2003, and in 1986, 1968, and during World War II enacted legislation to block federal gun registration.

Again, I'm not saying that a legislator must be so constitutionally conscientious that she vigilantly blocks every form of gun registration. I'm saying that a reasonable legislator cane so conscientious, just as another legislator could be so conscientious about free speech as to oppose even constitutionally-valid regulation of licensed professionals.

Finally, there is the broader social question of whether legislatures or medical licensing boards should attempt to impose any controls about physician counseling (including counseling in a coercive context) about the exercise of other lifestyle choices. If there is some evidence that religious people are healthier and live longer, is there anything wrong with physicians encouraging patients to go to church? If the weight of evidence suggests that moderate drinking is healthier than abstention, then would we object if a physicians group working with a pro-drinking lobby (just as the American Academy of Pediatrics works with gun prohibition groups) succeeds in encouraging family practitioners to tell their patients "Drink up! It's good for you."

Persons who place free speech values first in their legislative priorities would oppose almost all restrictions on physician counseling--even if the atheist patient in Alabama feels oppressed when her HMO doctor tells her "You ought to start going to church. It's healthy."

I respect the speech-protective values of opponents of the Virginia bill. And I also see that proponents of the bill had good arguments about other constitutional values, public safety, and medical ethics. Perhaps the Virginia medical ethics bill is an occasion where both sides should agree that there were reasonable arguments for both positions.

Related Posts (on one page):

  1. Doctors and Guns:
  2. Proposed Restriction of Doctors' Speech Related to Guns:
32 Comments
[David Kopel, February 27, 2006 at 8:06pm] 0 Trackbacks / Possibly More Trackbacks

Legal Status of Israel's Border and its Defensive Barrier

Below is a list of statements of law and fact regarding Israel's border, and its right under international law to build a defensive wall. I invite commenters to advance the discussion on these issues in terms of international law. I don't claim to be an expert on the issues of international law raised below, so comments from readers with expertise would be particularly welcome. Please do not use the comments to re-argue general issues about Zionism etc.

1. In November 1947, the United Nations partitioned the British mandate of Palestine. The partition gave the Jews only territories which were already owned by Jews, or which belonged to the British crown.

2. Many Palestinians began a war against Israel as soon as the partition was announced.

3. In May 1948, Israel declared its independence. In response, five Arabs nations immediately declared war on Israel.

4. In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were "without prejudice to future territorial settlements or boundary lines." Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9.

5. In 1967 Israel was attacked by Jordan, which at the time ruled the West Bank and East Jerusalem. Israel had no obligation, under international to vacate any territories until its foes entered into a meaningful peace agreement.

6. Later in 1967, the United Nations Security Council adopted Resolution 242, Notably, the resolution calls for Israel to withdraw from "territories" (not "all territories" or "the territories") as part of a peace agreement by which Arab states would end their belligerence against Israel. Today, most Arab states remain in a declared state of war against Israel.

7. Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.

8. As a general rule, international law forbids the permanent annexation of territory, even after a defensive war. However, Israel's settlements did not violate this rule, because they were built in areas where no internationally-agreed international border existed. (See points 4 and 6).

9. Later, Jordan signed a peace treaty with Israel, and renounced all claims to the West Bank and East Jerusalem. Jordan's renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel's legal ownership of the former Jordanian government lands in the West Bank.

10. Even if the last sentence of point 9 is incorrect, a nation has no obligation under international law to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Accordingly, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas. (Had the PLO followed through on its promises in the Oslo Accords, and actually ended its war against Israel, the legal situation might be different.)

11. Under international law, including the Fourth Geneva Convention, nations may build defensive structures in enemy territory which the nation has captured. The defensive structures may be maintained as long as the enemy remains in a state of belligerence.

12. Israel's right to build a defensive barrier in the West Bank is clear under item 11, since the wall is being constructed while the enemy (PLO/Hamas) is in a declared and actual state of war against Israel. (A temporary truce, subject to unilateral revocation, does not end a state of war.)

13. Israel's right to build the barrier is even stronger under international law, since (pursuant to points 4 and 6 above), the barrier does not extend beyond a legal international border, because the 1949-67 armistice line is not a legal border.

14. International law forbids the permanent annexation of enemy territory, but this point is irrelevant to the defensive barrier, for the reasons listed in items 4, 6, and 13.

15. If and only if the 1949-67 armistice line were a legal border, then Israel's construction of the barrier would be illegal under international law if the purpose of the barrier were for annexation. The barrier would not be illegal if the purpose were for defense (item 11).

16. The Israeli Supreme Court ruled that the barrier is primarily for defense, and accordingly, legal. The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.

Again, I'm not claiming expertise on the subject-matter of this post, and one major purpose of this post is find out if there are any flaws with the above reasoning, in terms of international law. In your comments, please focus on international law; this means, inter alia, don't waste time by citing UN General Assembly resolutions, statements by diplomats, or other sources which (while important from a policy sense) do not have the authority to create binding international law. Please focus on clear, relevant international law, such as treaties which have been ratified by Israel, or Security Council resolutions.

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[David Kopel, February 27, 2006 at 5:52pm] 1 Trackbacks / Possibly More Trackbacks

Newark Airport Sued for Abuse of Person Lawfully Transporting a Firearm:

The Port Authority of New York and New Jersey (which operates Newark Airport) has been sued by the Association of New Jersey Rifle & Pistol Clubs. The facts are these:

The Utah man, Gregg Revell, a real estate broker and family man with no criminal record and a Utah firearms permit, was flying alone from Salt Lake City, UT to Allentown, PA to retrieve a car he bought and drive it home. He was traveling with a firearm for personal protection. As required by Federal law, the firearm was unloaded, cased, locked and inside his luggage when he declared it at check-in in Salt Lake City on March 31, 2005.

Due to an airline-caused baggage error, Mr. Revell missed his connection from Newark to Allentown and had to stay overnight in New Jersey. When he checked in at Newark Airport the next morning to complete his travels, he again declared his firearm, as required by FAA regulations. He was then arrested for possession of a firearm without a New Jersey state license, and imprisoned in Essex County jail for five days until his family arranged bail, which had been initially set unusually high at $15,000 cash (no bond).

But Mr. Revell’s travels were protected by the Firearms Owner Protection Act, a Federal law passed in 1986 to protect law-abiding citizens who travel with firearms. (See 18 U.S.C. § 926A.) That law trumps state and local gun laws and protects interstate travel with firearms under certain circumstances, all of which were present in Mr. Revell’s case. Several months after the arrest, all charges were withdrawn and the prosecutor’s case administratively dismissed.

You can read a press release about the case and the Complaint. The lead attorney is Richard Gardiner of Virginia, a fine lawyer and a long-time friend, with whom I co-authored a law review article arguing that courts should protect the Second Amendment by dismissing abusive lawsuits against firearms companies.

32 Comments


David Kopel, February 27, 2006 at 12:47am] 0 Trackbacks / Possibly More Trackbacks

Proliferation of "Stand your ground" laws

Following the lead of a 2005 Florida law (which I blogged about last year), many states are considering "stand your ground" laws regarding self-defense. Although the details vary, the fundamental premise of all these laws is that a person attacked by a violent felon need not retreat before using justifiable force, even when the attack takes place in a public space. A new article from the Christian Science Monitor looks at the debate over the new laws, and includes a quote from me:

"These laws send a more general message to society that public spaces belong to the public - and the public will protect [public places] rather than trying to run into the bathroom of the nearest Starbucks and hope the police show up," says David Kopel, [research] director of the Independence Institute in Golden, Colo.

For historical perspective on the debate, see my article "The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-first," from the American Journal of Criminal Law, which discusses, inter alia, how the Supreme Court addressed the "no duty to retreat" issue in the late 19th and early 20th centuries.

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The Proposed UN Human Rights Council: The Cure is worse than the Disease

That's the conclusion of Canadian human rights lawyer Anne Bayefsky, expressed on the outstanding website Eye on the UN. For continuing coverage of the the "United" Nations, the Eye on the UN website has no peer. It is an absolutely indispensable resource for a concerned global citizen who, although not personally involved in UN affairs, wants to understand what is going on at the United Nations.

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[ David Kopel, February 24, 2006 at 1:16am] 0 Trackbacks / Possibly More Trackbacks

Recommendations for PDA-enabled blogs?

As some of you know, I archive most of my Volokh.com postings on my own website, on a blog I call "Kopel's Corner." There's often a lag time of several days or more between when I write for VC and when I get around to copying the item to Kopel's Corner. I also maintain a PDA-friendly version of the KC weblog. I would like to revise the KC PDA weblog's blogroll, so that it includes only PDA-enabled weblogs. If you have suggestions for good weblogs -- particularly ones which focus on politics, policy, law, or religion -- please supply your recommendations in the comments section. Please feel free also to recommend PDA-enabled websites, even if they're not blogs. From my Treo 650, I'm a frequent reader of Instapundit to Go and the PDA version of Powerline, but I would like to learn about more high-quality PDA sites. 10 Comments


[David Kopel, February 23, 2006 at 12:38am] 2 Trackbacks / Possibly More Trackbacks

Misusing Jesus for Political Purposes:

The Presbyterian Church (USA) is part of a large coalition of religious activists who are opposing the immigration reform law which the U.S. House of Representatives passed last year (and which still awaits Senate action). PCUSA's Washington office director Elenora Giddings-Ivory recently defended the church's lobbying position by stating: "Joseph and Mary had to flee persecution. Jesus was not born in his home community."

The statement is a gross misuse of the Bible, in part because the passages point to precisely the opposite policy result favored by Giddings and the PCUSA.

Joseph and Mary did indeed have to flee persecution; a few weeks after Jesus was born, they fled to Egypt because they learned that Israel's King Herod was planning to murder Jesus. Under current U.S. immigration law, the Joseph/Mary/Jesus family would have been entitled to asylum in the United States because they would have been able to prove that they could not return to their home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C.§ 1101(a)(42)(A). (U.S. immigration officers and the reviewing court might not have credited Joseph's fear of persecution, which was based on a dream. But hypothetically, the family could have called the Magi as witnesses, who could attest to Herod's obsession with Jesus, and called other witnesses who could have testified about the Massacre of the Innocents that Herod had perpetrated in Israel.)

Accordingly, the Bible story of the Flight into Egypt could be usefully deployed in arguing against U.S. immigration law changes which would restrict entry by genuine refugees. The story could likewise be used to argue in favor of giving refugee status to Chinese families who are fleeing from the Chinese dictatorship's forced abortion policies.

However, PCUSA opposition to the House immigration bill is not based on refugee issues, but rather on the bill's attempt to stem the massive illegal immigration into the United States, principally from Mexico, for economic reasons. Thus, Giddings' accurate statement that Mary and Joseph had to flee persecution is irrelevant. And her other statement disproves her case.

It is true, as she says, that "Jesus was not born in his home community." His parents were living in Galilee, but they were traveling to Bethlehem when Jesus was born. Why were they traveling? Not so that Joseph could live someplace illegally as an "undocumented worker," but for the opposite reason. They were going to Bethlehem to comply with the Empire-wide tax and census decree issued by Augustus Caesar. Joseph, being from the House of David, had to go to David's city because "everyone went to his own town to register."

Many historians find it unlikely that there really was a universal tax/census around the time of Jesus's birth, and even more unlikely that a Roman tax would have required people to travel to ancestral towns for registration. But for purposes of argument, I'm accepting Giddings' implicit claim that the story about Jesus being born away from his home community is true.

In any case, one of the symbolic points made by the story is that Joseph and his very pregnant spouse went far out the way (literally) to comply with a government tax and census law. Some scholars suggest that one original purpose of the passage, when it was written sometime around the middle or latter part of the first century, was to show the Roman authorities that Christians were not lawless rebels, but in fact were extremely law-abiding and submissive to government authority (as long as the authority did not interfere with Christian religious practices). Whatever you want to say about Joseph the carpenter, you have to admit that he did everything possible to make sure that he was not an "undocumented worker."

There are many interesting pro and con arguments based on the Judeo-Christian tradition, and on other religious traditions, which can be applied to the immigration reform debate. But there are some Bible-based arguments which are obviously nonsensical and self-contradictory; you can't use the Sermon on the Mount to argue that personal revenge is a virtue, or David & Goliath to argue that slings ought to be outlawed, or Noah's Ark to claim the emergency preparedness is sinful. Likewise, it is preposterous to invoke the story of the Galilean baby's birth in Bethlehem to assert that it is immoral to enforce laws requiring people to pay taxes and declare their lawful identity. 59 Comments


[David Kopel, February 22, 2006 at 11:34pm] 0 Trackbacks / Possibly More Trackbacks

United Arab Emirates and Osama bin Laden

At the March 23, 2004, hearings of the September 11 Commission, the Commission's executive director, Dr. Philip Zelikow, presented a staff statement which included the following:

The Desert Camp, February 1999. During the winter of 1998-99, intelligence reported that Bin Ladin frequently visited a camp in the desert, adjacent to a larger hunting camp in Helmand Province of Afghanistan, used by visitors from a Gulf state. Public sources have stated that these visitors were from the United Arab Emirates. At the beginning of February, Bin Ladin was reportedly located there, and apparently remained for more than a week. This was not in an urban area, so the risk of collateral damage was minimal. Intelligence provided a detailed description of the camps. National technical intelligence confirmed the description of the larger camp, and showed the nearby presence of an official aircraft of the UAE. The CIA received reports that Bin Ladin regularly went from his adjacent camp to the larger camp where he visited with Emiratis. The location of this larger camp was confirmed by February 9, but the location of Bin Ladin's quarters could not be pinned down so precisely.

Preparations were made for a possible strike, against the larger camp, perhaps to target Bin Ladin during one of his visits. No strike was launched.

According to CIA officials, policymakers were concerned about the danger that a strike might kill an Emirati prince or other senior officials who might be with Bin Ladin or close by. The lead CIA official in the field felt the intelligence reporting in this case was very reliable. The UBL unit chief at the time agrees. The field official believes today that this was a lost opportunity to kill Bin Ladin before 9/11.

Clarke told us the strike was called off because the intelligence was dubious, and it seemed to him as if the CIA was presenting an option to attack America's best counterterrorism ally in the Gulf. Documentary evidence at the time shows that on February 10th Clarke detailed to Deputy National Security Advisor Donald Kerrick the intelligence placing UBL in the camp, informed him that DOD might be in a position to fire the next morning, and added that General Shelton was looking at other options that might be ready the following week. Clarke had just returned from a visit to the UAE, working on counterterrorism cooperation and following up on a May 1998 UAE agreement to buy F-16 aircraft from the United States.

On February 10th, Clarke reported that a top UAE official had vehemently denied that high-level UAE officials were in Afghanistan. Evidence subsequently confirmed that high-level UAE officials had been there.

The indispensable Middle East Media Research Institute reported in a two-part series in 2003 on the Zayed International Centre for Coordination and Follow-up, a UAE think tank whose patron was the second son of the President of the UAE, and which was a source of vile anti-American, pro-Hitler, anti-Jewish propaganda. The introduction to the MEMRI report explains that UAE officials privately acknowledged that the government-funded Zayed Center was a problem, but reining it in was difficult. The think tank was later closed.

Although many of the leaders of the UAE dictatorship may indeed support the U.S. in the war on terror, it seems clear that, at the least, there is a notable portion of the UAE, including some powerful and/or influential people, who do not. As James Lileks points out (in an article which Eugene linked to earlier today), the risks of a bin Laden sympathizer from the UAE supplying critical US port information to terrorists seems unacceptably high.

One of the talking points raised by defenders of the Bush decision on Dubai Ports has been to point out that many ports in the Los Angeles area are run by the Chinese. During the 2d Clinton term, Congress blocked Administration efforts to give the former Long Beach Naval Station to COSCO (Chinese Ocean Shipping Company), a front for the Chinese military. The COSCO issue garnered almost no attention in the traditional media, but public opposition grew overwhelming as a result of New Media attention to the issue.

But, obviously, the temporary victory at Long Beach did not prevent the Chinese dictatorship from taking control of many California ports.

Congressional opposition to the Dubai Ports deal currently appears to far exceed the margin necessary to over-ride a presidential veto. Congress could improve American national security, and also scuttle claims that opposition to Dubai Ports is based on prejudice against Arabs or Muslims, by using the Dubai Ports prevention bill to also provide for the termination of Chinese control of American ports. As a general rule, it would make sense to prohibit operation of any U.S. port, or other critical national infrastructure, by a company which is not from a democratic nation or from a nation with a formal alliance requiring the nation to defend the U.S. if the U.S. is attacked.

More narrowly, Congress could forbid U.S. port operation by companies (including government-controlled companies) of any nation which: 1. Has nuclear missiles aimed at the United States, or 2. Has provided nuclear technology to any nation on the U.S. State Department list of state sponsors of terrorism.

Related Posts (on one page):

  1. United Arab Emirates and Osama bin Laden
  2. Lileks on the Port Controversy:
19 Comments
[David Kopel, February 14, 2006 at 2:01pm] 0 Trackbacks / Possibly More Trackbacks

Two different lives:

These stories came to me via e-mail. None of the language below is mine. The two stories are both about courage, although in very different ways:

Story number 1:

Many years ago, Al Capone virtually owned Chicago. Capone wasn't famous for anything heroic. He was notorious for enmeshing the windy city in everything from bootlegged booze and prostitution to murder.

Capone had a lawyer nicknamed "Easy Eddie." He was his lawyer for a good reason. Eddie was very good! In fact, Eddie's skill at legal maneuvering kept Big Al out of Jail for a long time. To show his appreciation, Capone paid him very well.

Not only was the money big, but Eddie got special dividends. For instance, he and his family occupied a fenced-in mansion with live-in help and all of the conveniences of the day.

The estate was so large that it filled an entire Chicago City block. Eddie lived the high life of the Chicago mob and gave little consideration to the atrocity that went on around him.

Eddie did have one soft spot, however. He had a son that he loved dearly. Eddie saw to it that his young son had the best of everything: clothes, cars and a good education. Nothing was withheld. Price was no object.

And, despite his involvement with organized crime, Eddie even tried to teach him right from wrong. Eddie wanted his son to be a better man than he was. Yet, with all his wealth and influence, there were two things he couldn't give his son; that he couldn't pass on a good name and a good example.

One day, Easy Eddie reached a difficult decision. Easy Eddie Wanted to rectify wrongs he had done. He decided he would go to the authorities and tell the truth about Al "Scarface" Capone, clean up his tarnished name and offer his son some semblance of integrity.

To do this, he would have to testify against The Mob, and he knew that the cost would be great. He testified and within the year, Easy Eddie's life ended in a blaze of gunfire on a lonely Chicago Street. But in his eyes, he had given his son the greatest gift he had to offer, at the greatest price he would ever pay.

Story Number Two:

World War II produced many heroes. One such man was Lieutenant Commander Butch O'Hare. He was a fighter pilot assigned to the aircraft carrier Lexington in the South Pacific.

One day his entire squadron was sent on a mission. After he was airborne, he looked at his fuel gauge and realized that someone had forgotten to top off his fuel tank. He would not have enough fuel to complete his mission and get back to his ship. His flight leader told him to return to the carrier.

Reluctantly, he dropped out of formation and headed back to the fleet. As he was returning to the mother ship he saw something that turned his blood cold.

A squadron of Japanese aircraft was speeding their way toward the American fleet. The American fighters were gone on a sortie, and the fleet was all but defenseless. He couldn't reach his squadron and bring them back in time to save the fleet. Nor could he warn the fleet of the approaching danger.

There was only one thing to do. He must somehow divert them from the fleet.

Laying aside all thoughts of personal safety, he dove into the formation of Japanese planes. Wing-mounted 50 calibers blazed as he charged in, attacking one surprised enemy plane and then another.

Butch wove in and out of the now broken formation and fired at as many planes as possible until all his ammunition was finally spent. Undaunted, he continued the assault. He dived at the planes, trying to clip a wing or tail in hopes of damaging as many enemy planes as possible and rendering them unfit to fly.

Finally, the exasperated Japanese squadron took off in another direction. Deeply relieved, Butch O'Hare and his tattered fighter limped back to the carrier. Upon arrival he reported in and related the event surrounding his return.

The film from the gun-camera mounted on his plane told the tale. It showed the extent of Butch's daring attempt to protect his fleet. He had in fact destroyed five enemy aircraft.

This took place on February 20, 1942, and for that action Butch became the Navy's first Ace of W. W. II, and the first Naval Aviator to win the Congressional Medal of Honor.

A year later Butch was killed in aerial combat at the age of 29. His home town would not allow the memory of this WW II hero to fade, and today, O'Hare Airport in Chicago is named in tribute to the courage of this great man.

So the next time you find yourself at O'Hare International, give some thought to visiting Butch's memorial displaying his statue and his Medal of Honor. It's located between Terminals 1 and 2.

SO WHAT DO THESE TWO STORIES HAVE TO DO WITH EACH OTHER?

Butch O'Hare was Easy Eddie's son.

55 Comments(Note: Some of the comments add some factual clarification this delightful glurge.)


[David Kopel February 12, 2006 at 4:17pm] 0 Trackbacks / Possibly More Trackbacks

Bleg for Information on International Women's Peace Service:

The International Women's Peace Service supplies anti-Israel speakers to schools and churches around the United States. It is led by a Jewish woman from San Francisco named Kate Raphael. According to FrontPage magazine, Raphael is a leader of the International Solidarity Movement. She is the subject of a very brief profile from Discover The Networks. The IWPS and Raphael are also the subject of an enormous amount of positive attention from various IndyMedia websites around the world.

Raphael was expelled from Israel for her role in a demonstration organized by ISM. She claims that the demonstration was peaceful, and others claim that it was not.

I would be grateful if commenters could supply additional information about the IWPS and Raphael. Please do not argue the merits of the pro/anti-Israel issue. Please do supply information about the veracity of IWPS/Raphael, and whether IWPS/Raphael's self-description as "peace activists" is accurate. 14 Comments


David Kopel, February 11, 2006 at 11:39pm] 4 Trackbacks / Possibly More Trackbacks

Shall We Live under de facto Shari'a?

That's the question posed by my latest media analysis column for Rocky Mountain News. Also in today's News, publisher John Temple suggests that fear of Islamist terrorists is a key reason why American newspapers aren't publishing the cartoons. Editorial page editor Vincent Carroll has lambasted the New York Times for its refusal to print the cartoons. And the News in its formal editorial voice has taken perhaps the most uncompromising pro-free speech position of any major daily newspaper in the United States 75 Comments
[David Kopel, February 7, 2006 at 5:03pm] 0 Trackbacks / Possibly More Trackbacks

Questions regarding the Danish Cartoons:

Since last week, the Rocky Mountain News website has included a link to all 12 of the controversial Danish cartoons. The link currently resides in the lower-left column on the home page. Have any other U.S. newspaper websites published a link (or republished the 12 cartoons directly)? Comments are enabled for answers to this question.

Comments are also enabled for answers to some questions about Islamic law. Please comment only if you have actual knowledge of the answer to at least one question:

1. Is the ban actually based on the Koran, or is it based on clerical interpretation?

2. My understanding is that the clerical/legal scholar stance on the question has not, historically, been unanimous. Is that correct?

3. To the extent that Shari'a does prohibit depictions of Mohammed, is the prohibition part of a general prohibition on the depiction of any prophet? BTW, Bahrain banned "The Passion of the Christ" because of what was said to be a general prohibition on depicting prophets (including Jesus).

4. To what extent, if any, does Shari'a law claim to be applicable in a non-Muslim country? Only to Muslims in that country, or does Shari'a claim universal jurisdiction at all times?

Of course citations of legal sources, and links, would be welcome.

All Related Posts (on one page) | Some Related Posts:

  1. Journalists Facing Prosecution for Printing Cartoons:
  2. Instructor at Minnesota State College Allegedly Ordered Not To Post Mohammed Cartoons:
  3. University of Chicago Threatening to Punish Student for Posting Anti-Mohammed Cartoon?...
  4. I Demand a Fatwa:
  5. Questions regarding the Danish Cartoons:
  6. An Israeli View of the Mohammed Cartoon Issue:...
  7. U.S. State Department on the Cartoons Depicting Mohammed:
  8. Bush Cabinet Member Condemns Anti-Christian Blasphemy, and Points to Laws Restricting Incitement to Hateful Expressions:
  9. Suppressing Anti-Religious Speech -- an Emerging International Law Norm?
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[David Kopel, January 31, 2006 at 2:38pm] 0 Trackbacks / Possibly More Trackbacks

Enforcing Godwin's Law

Back in 1994, a friend at a radio station in Colorado asked me to be a guest on a small talk radio show in Alaska. The Alaskan interviewer, who had been told that I was strong supporter of gun rights, began by asking me if I agreed that gun control is a Nazi conspiracy. To his surprise, I disagreed, and said that there were a lot of people who were for a lot of bad gun control laws, but that didn’t mean that they were Nazis. Nor, I added, was everybody who supported gun control part of a conspiracy.

The host got angry, and insisted that gun control was a conspiracy, because there the Bible shows that conspiracies are real. If I had been quick-witted, I would have pointed out that the Bible also shows that frogs are real, but that doesn’t prove that every animal you see is a frog. However, he threw me off the show before I could make the point.

The host was plainly incorrect, I thought, in his invocation of Nazism, but are there ever circumstances in which commentators can legitimately make analogies to the Nazis? Some people say “never,” and for proof, they cite “Godwin’s Law.” Many of the people who cite Godwin’s Law, however, appear not to know what the Law actually says.

According to Wikipedia, Godwin’s Law was created by Mike Godwin, of the Electronic Frontier Foundation, in a 1990 Usenet discussion. The Law states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Note that Godwin’s Law does not state whether the comparison is valid or not. However, Mike Godwin says that he invented the law to address "a trivialization I found both illogical and offensive."

Wikipedia explains:

…Godwin's Law does not dispute whether, in a particular instance, a reference or comparison to Hitler or the Nazis might be apt. It is precisely because such a reference or comparison may sometimes be appropriate, Godwin has argued, that hyperbolic overuse of the Hitler/Nazi comparison should be avoided. Avoiding such hyperbole, he argues, is a way of ensuring that when valid comparisons to Hitler or Nazis are made, such comparisons have the appropriate impact.

So there is no “Godwin’s Law” against bringing up Hitler or the Nazis. It is precisely because some Nazi/Hitler comparisons are valid that Godwin attempted to prevent the depreciation of the comparison through excessive, improper use. Using Nazi comparisons only when appropriate might be called “Godwin’s Policy."

According to the Godwin’s Law FAQ, “Abortion and gun control debates always lead to Nazi comparisons.” Many of the comparisons in these debates are violations of Godwin’s Policy. For example:

“The Nazis were pro-natalist and thought that women’s highest purpose was having babies. People who want to ban abortion think the same thing, and therefore they are like Nazis.”

“The Nazis killed millions of people, and abortion kills millions of people, and therefore people who are for legal abortion are like Nazis.”

“The Nazis were right-wingers who liked to own guns and who extolled the military and people who are against gun control are right-wingers who like to own guns and who extol the military and therefore people who are against gun control are Nazis.”

“The Nazis liked strict gun control laws enforced by big government, and so do Americans who like strict gun control laws, and therefore Americans who support strict gun control laws are like Nazis.

There are also many situations in which Godwin’s Policy is not violated by bringing up the Nazis. For example, it would be nearly impossible to write about actual Nazi practices involving birth control, abortion, women’s rights, gun control, military weaponry, or mass murder without using the words “Nazi” or “Hitler.”

In what situations are modern-day comparisons to the Nazis likely to follow Godwin’s Policy of being useful, rather than trivial or hyperbolic? There are several obvious cases for which the Nazi comparison is neither hyperbolic nor trivial, even though the case in question may have some significant differences from the Nazis. This list is meant to be suggestive, not comprehensive:

1. When discussing followers and leaders of a political movement that is explicitly founded on Nazi principles or my admirers/allies of Nazism. These would include some, but not all, of the racist hate groups. These also include the Ba’ath parties of Iraq and Syria, since Ba’ath was founded as an Arab nationalist syncretic blend of Nazism and Stalinism.

2. When discussing somebody who adopts the nickname “Hitler,” as well as followers and cohorts of such a person. This would include Zimbabwe, where the late right-hand man of the tyrant Robert Mugabe was Chenjerai "Hitler" Hunzvi. It also includes the Fatah Party in the Palestinian Authority, one of whose members of the national assembly, Jamal Abu Roub, sports the nickname "Hitler."

3. People who publish and read Mein Kampf not as an exploration of an evil mind, but because they like its agenda. This group apparently includes a huge number of Arab and Turks.

4. People who attempt to delegitimize the Jewish need for a national homeland by denying that the Holocaust took place. This does not mean that everyone who disagrees with the creation of Israel is fit subject for a Nazi analogy. I am referring only to people who implicitly defend the Nazis by denying the historical reality the Holocaust.

5. People who advocate for (or rule) dictatorships and who simultaneously espouse extreme forms of anti-semitism--as in “God hates Jews” or regret that Hitler didn't finish killing all the Jews.

Even though a comparison may be useful, there will always be differences between the modern subject of comparison and the historical Nazis. "Hitler" Hunzvi was an anti-colonialist who loathed the British Commonwealth, whereas Adolf Hitler was not. The original Hitler wanted African colonies of his own, and was willing to agree to a peace treaty which would have left the British Empire intact, in exchange for British acquiescence to German domination of Continental Europe.

Likewise, knowing that a person or group has a pro-Nazi past is often a helpful predictor of later behavior--but not always, since Anwar Sadat was a pro-Nazi activist during World War II, but later made peace with Israel.

So even if a Nazi comparison can be invoked consistently with Godwin’s Policy, there is still room for legitimate debate what lesson can be gleaned from the comparison. For example, it is widely (although not universally) agreed that Neville Chamberlin’s policy of appeasement towards Hitler was a mistake. Ever since the early Cold War, there have been people who argued that various forms of accommodation or non-resistance to totalitarians was bound to lead to disaster, as Chamberlin’s policies did. Sometimes the anti-appeasement analogy seems to have worked well, as in the U.S. policy of deterring or stopping Communist aggression in Western Europe and South Korea.

In other circumstances, the analogy may be much more complicated. The appeasement analogy was frequently invoked by supporters of American military action in Indochina. On the one hand, the non-Communist government Cambodia was far inferior—in terms of fighting ability and popular support—to the democratic government of Czechoslovakia in 1938, so the Nazi appeasement analogy was inapt.

On the other hand, supporters of American intervention in Indochina, in their frequent warning of a “bloodbath” that would follow Communist victory, actually understated the Nazi analogy, since the victorious Communist regimes in Cambodia, Laos, and Vietnam all initiated genocides, rather than only killing their known political opponents.

Reasonable people can always debate the persuasiveness of any particular analogy to the Nazis. It is not reasonable, though, for people to refuse to consider what can be learned from history, including the history of Nazism. And it is simply ignorant for people to invoke their own misunderstanding of Godwin’s Law as if were a rule that forbade attempts to use the last century’s encounter with genocidal tyranny as one of the experiences which can inform our own attempts to meet modern challenges of totalitarianism, anti-semitism, genocide, and other evils.

UPDATE: A commenter raises a very interesting point:
1. What about a person who explicitly wanted to form an alliance with Hitler in order to fight British and get them out of pre-State Israel/mandate Palestine in order to form a state of natives of that area?

2. What about people who explicitly admire the person referred to in number 1 and use him as a model of a resistance fighter?

Are either 1 or 2 deserving of "Nazi" or "Hitler" comparisons?

I would venture to guess you or Bernstein would think reference 1 was to the Grand Mufti, and reference 2 is to the PLO. Wrong. I am referring to Avraham Stern in 1 — leader of the Jewish resistance/terrorist group, Lehi (or the Stern Gang). In 2, I refer to, among others, Yitzhak Shamir, long-time Prime Minister of Israel, and hero of neo-cons.

Actually, I already knew that some Jews in British Palestine in WWII had the idea of working with Hitler. I also think it's legitimate, and helpful, to look at that stain on Jewish history. If Jews are going to learn from the past, they need to study the mistakes made by some earlier Jews. How did some people who started out as a legitimate resistance group (in my view) end up trying to fight on the same side of the worst Jew-killer of all time?

Almost every people, including the Jewish people, could usefully examine their own past instances of collaboration (even by a small percentage of the people) with Nazis or other evil regimes.

Like some Jews in British Palestine, Anwar Sadat was also on the Hitler side during World War II. In both cases, their conduct regarding Nazism was cause for serious concern about their future judgment. Sadat and some members of Lehi overcame their Nazi-related errors, and became honorable statesmen.

71 Comments

January 30, 2006 at 3:24pm] 1 Trackbacks / Possibly More Trackbacks

More power for Secret Service? ACLU and Kopel say "no":

A new article from Fox News explains how Senator Specter inserted a provision into the conference report on the Patriot Act. The provision, which has never been the subject of a congressional hearing or vote, would significantly expand the power of the Secret Service to create restricted zones in which demonstrations and other forms of free speech could be restricted.

For more on the controversy, see this story from the December Washington Post. The text of Specter's proposal (which was originally introduced as a stand-alone bill), is contained in section 2 of S. 1967.

Personally, I am open to serious, fact-based arguments that there is be a legitimate need to expand Secret Service powers--but those arguments have not been presented, since there have never been any Congressional hearings or debate on giving the Secret Service more power. Congress owes the American people the duty of holding hearings and open debate on any new law, and the duty is especially important when the new law would increase the power of the executive branch to limit the exercise of constitutional rights, including the right to freely assemble.

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January 29, 2006 at 12:55pm] 1 Trackbacks / Possibly More Trackbacks

Which people elected Hitler to their legislature?

Hint: A few years before the election, the same people turned Mein Kampf into a national best-seller.

Additional hint: After the election of Hitler, many people in the West hoped that Hitler's party, faced with the responsibility of governing, would moderate itself, and turn away from its promise to make everyone, particularly Jews, submit to its totalitarian ideology. These same people hope that although Hitler's party is explicitly founded on the promise of total war until total victory, the party in power will recognize the rights of its enemies to peaceful co-existence and to control of areas which Hitler's party claims as its national birthright.

Extra hint: many of the apologists for Hitler's party blame the rise of the party on the provocations of Jews.

Answer: Greg Myre's International Herald Tribune article on Hitler is here.

UPDATE: Some people were having trouble opening the link. The person in question is Jamal Abu Roub, who goes by the nickname "Hitler." He was recently elected to the Palestinian parliament on the Fatah slate. He is part of the explicitly terrorist Al Aksa Martyrs brigade, which, unlike some other Fatah components, does not attempt to disguise its terrorist nature. Fatah (a renamed version of the terrorist Palestine Liberation Organization) has been governing, more or less, the so-called Palestinian territories as a result of the failed Oslo peace agreement, and has proven that being given the authority to govern does not necessarily reduce an organization's terrorist inclinations. I had mistakenly thought that Hitler was part of Hamas. In any case, Fatah's record provides one more reason to be skeptical that terrorist Palestinians will stop being terrorists once they achieve political power.

54 Comments


January 27, 2006 at 5:58pm] 1 Trackbacks / Possibly More Trackbacks

Cindy Sheehan Threatens to Run Against Feinstein:

"Cindy Sheehan to Dianne Feinstein: Fillibuster [sic] Alito or I’ll Challenge Your Senate Seat." That's the headline of a press release just issued by Ms. Sheehan. The text begins:

Caracas, Venezuela – Gold star mother Cindy Sheehan has decided to run against California Senator Diane Feinstein if Feinstein does not filibuster the Supreme Court nomination of Judge Samuel Alito. While in Venezuela attending the World Social Forum, Sheehan learned that several Democratic Senators had announced their plans for a filibuster but that Senator Feinstein, who’s up for re-election in November, had stated she would vote against the nomination but not filibuster it. “I’m appalled that Diane Feinstein wouldn’t recognize how dangerous Alito’s nomination is to upholding the values of our constitution and restricting the usurpation of presidential powers, for which I’ve already paid the ultimate price,” Sheehan said.
In a September 11, 2005, essay, Ms. Sheehan said that Senator Feinstein "will also go on our Hall of Shame" because Senator Feinstein has rebuffed three requests by Ms. Sheehan for a personal meeting.

Last fall, Ms. Sheehan dismissed rumors that she might offer herself as a candidate against the re-election bid of Senator Hillary Clinton, whom Sheehan called "a political animal who believes she has to be a war hawk to keep up with the big boys" and "the leader of the pack" of "the pro-war Democrats."

UPDATE: Some commenters were wondering about Ms. Sheehan's reasons for opposing Alito, so here is the rest of the press release:

Sheehan is the grieving military mother whose vigil outside President Bush’s ranch in Crawford last summer focused the nation’s attention on the human cost of the Iraq war. Her son Casey was killed in Iraq in April 2004.

Judge Alito has an extensive paper trail documenting the right-wing political agenda that he has actively advanced, not only as a high-ranking official in the Reagan Administration, but also as a judge. He has publicly supported the "Unitary Executive" theory, a radical notion that the President holds exclusive and inherent authority to execute all federal law. He has supported efforts to curtail privacy rights, including not only privacy from government surveillance and arbitrary arrest, but also other constitutional rights based on privacy, such as reproductive liberty for women. Alito has outspokenly sought to restrict Congress' power, limiting the scope of the Commerce Clause of Article I of the Constitution. In addition, he has consistently applied his discretion as a judge in favor of certain interests and against others. He rarely votes against big business, police or prosecutors.

Sheehan is available for interviews from Venezuela through the contact people listed above. [DK: I have omitted the contact info from this posting.] She returns to the United States on Monday morning and will travel to Washington, DC on Tuesday to participate in an alternative State of the Union event.

61 Comments

David Kopel , January 24, 2006 at 12:45am] 0 Trackbacks / Possibly More Trackbacks

Two Cheers for Paul Martin:

The Liberal Canadian Prime Minister has just delivered an eloquent, patriotic concession speech. Current results (including Ridings where results are not final) is Conservatives 124; Liberals 103; Bloq Quebecois 51; New Democratic Party 29; Independent 1. This will lead to the Governor-General of Canada asking Conservative party leader Stephen Harper to form a minority government.

As the results solidified, television commentators speculated that the Liberals might try to hold on to power by forming a minority coalition with the NDP. Paul Martin's concession speech, however, rejected this backdoor attempt to cling to power. Although the Liberal campaign was extraordinarily ugly by Canadian standards (the low point being a quickly-withdrawn January 12 ad warning that Stephen Harper would put the military on the streets of Canadian cities), Martin's concession speech was statesmanlike, dignified, and constructive.

In Parliament, the Conservatives and NDP will be able to team up to pass a variety of anti-corruption measures. Enactment of other items on the Conservative agenda (such as adding property rights to the Charter of Rights and Freedoms, or dismantling the long gun registry and spending the savings on more police) is uncertain.

Although the Liberals lost, they did better than polls had indicated. Regionally, the results are: In Atlantic Canada, a late Liberal surge maintained the status quo, with only small Liberal losses. In Quebec, the Conservatives won nearly a third of the vote, and handily displaced the Liberals as the major federal party in Quebec. In Ontario, the Conservatives made significant gains, while the Liberals easily held their stronghold of Toronto. In the Prairie Provinces, the Conservatives had a great night, as expected; I was especially pleased to see that Liberal gun-banning Justice Minister Annie McClellan lost her seat in Edmonton. In British Columbia, the Liberals appear to be holding much of their Vancouver base, although results are still coming in.

16 Comments


[David Kopel , January 23, 2006 at 11:57pm]

British Gun Controls -- and the quasi-independence of some small islands:

I recently received this article from an overseas friend, and received permission to post it. It does not exist anywhere else on the Web. The article details the experience of a competitive handgun shooter from the Isle of Man who was returning from a competition in the Channel Island of Jersey, and had to pass through a London airport. Following the shooter's tale of woe, I explain how it is possible that handguns are legal in the Channel Islands and the Isle of Man, even though they are banned in the United Kingdom.

How Irrational Fears of Inanimate Objects Divert Resources & Delay ‘Planes

by John Partington, Isle of Man Pistol Team Member

Flying back from the Commonwealth Shooting Federation (European Division) Championships in Jersey in May 2003 we, the Isle of Man Shooting Team, had to change ‘planes at London Gatwick Airport. What should have been a straightforward exercise in which all our checked luggage would be transferred automatically to our next ‘plane, as per the tags attached in Jersey, became a highly-stressed, worrying farce in which the comic element only became apparent some (considerable) time later.

As our pistols are illegal in England, all the gun and ammunition boxes were dealt with very carefully when we booked in at Jersey Airport. They should have stayed airside at Gatwick and been transferred direct to the Isle of Man ‘plane. Unfortunately, as we were going through the luggage pick-up Hall, there on the carousel were our 3 cases with big Firearms stickers plastered all over them and 2 more boxes clearly marked Ammunition. Just going round and round.

We informed Customs that we needed someone to take charge of the boxes as, if we touched them in England, we would be committing a serious firearms offence (illegal firearm possession is liable to a sentence of 14 years). I showed Customs our 3 IoM Firearm Certificates. The Customs office gave me permission to collect all 5 cases and take them to be X-rayed and checked in. When I put the boxes through the X-ray, the operator informed me that there were guns in the cases and they should not be there. This valuable new information was, of course, a great help! The operator then ‘phoned the senior Customs officer and the Armed Response police unit. The police arrived first and told the operator that there was no problem as they had been notified in advance and, as far as they were concerned, everything was in order. Then a senior Customs officer re-checked all the paperwork and the serial numbers that had already been checked in Jersey, then added a security sticker to each case to prove they had been through Security.

By now time was running out, but we had been effectively forced to enter England with our guns and now had to locate and reach the check-in desk for the Isle of Man flight.

I had the unique experience of an armed escort: one policeman in front of me and one behind. One of the policemen decided that there was no time for the lift so, with a forceful, “We will use the escalator. Follow me!”, he was off at a trot. "Stand back!" he shouted as we raced up the escalator, two steps at a time (with me as the filling in a Police sandwich), "Make way, make way!". I pulled both my Achilles tendons trying to keep up with this super-fit escort team.

Eventually, in pain and out of breath, I reached the Check-in desk.

“What's in the cases marked firearms?”, asked the gentleman at the desk.

Me - a gasped “Guns”.

Check-in - “We will need to check them”.

Me – “But that was done 5 minutes ago, coming in”.

Check-in – “That is not my responsibility. I have to make sure that everything going out is in order”.

Me – “The cases have been sealed with Security stickers and it is plain to see that they have not been broken”. At this point there was an announcement on the Airport Tannoy system, calling me to go to Departure immediately as the ‘plane was ready to depart, which I drew to the attention of the gentleman at the Check-in desk. At my request he then made a ‘phone call to hold the ‘plane.

Check-in – “You have pistols in these cases”, he informed me (this was, of course, a frightful surprise to both the police and myself).

Me – “That is why the police are here”.

Check-in - “I need to check that all the numbers are correct … ”.

When I eventually limped to my seat, my colleagues, long sitting comfortably in theirs, had already seen a funny side that, sadly, eluded me for several days.

Results?

Flight held up for 15 minutes at one of the busiest Airports in the world; several Police and Customs officers diverted for an hour or so from looking for NON-DECLARED contraband, or wanted persons, or some other useful activity; 2 strained tendons and a month’s quota of worry.

Postscript

… and that wasn’t the end of the story. When we reached the Isle of Man, a pistol box with 3 pistols and a rifle box with 2 rifles, were both missing. Inevitably this led to many ‘phone calls, discussions with airline and security staff – and a great deal of worry. A day later, they turned up, but without any explanation. Perhaps the spitting cobras had gone for a walk.

[Back to Dave from here on:]

How did it come to be that the Channel Islands and the Isle of Man (in the Irish Sea) are not subject to the handgun prohibition enacted by the Parliament of the United Kingdom, at the urging of Prime Minister Tony Blair?

The answer is that the Jersey and the Isle of Man are not part of the United Kingdom. They are dependencies of the British crown, but they have no representation in the U.K.’s Parliament, and U.K. laws do not apply to the islands’ internal affairs. (Although such laws could theoretically be imposed by the Queen’s Governor-in-Council, they almost never are.)

Before the Norman Conquest of England, Jersey was ruled by the Plantagenet family of Normandy, which also ruled other parts of France. William the Conqueror (the Norman king) took over England in 1066. The Plantagenet family (and the other families which succeeded them on the English throne), eventually lost all of their old pre-1066 possessions—except for the Channel Islands. Although the wicked King John lost Normandy in 1204, Jersey and the other Channel Islands stayed local to the British crown, in exchange of guarantees of great local autonomy. The islands changed hands several times between England and France, giving the Islanders leverage to continue to insist on autonomy in exchange for fealty. (There are are some other islands in the Channel which are part of France, and others--the Isle of Wight and the Scilly Islands--which are part of the United Kingdom. "Channel Islands" is a term which applies only to the semi-independent islands.)

The Channel Islands now have two entirely separate, self-governing Bailiwicks. The Bailiwick of Jersey (one inhabited island and two uninhabited ones) and the Bailiwick of Guernsey (seven inhabited islands).

So the Channel Islands recognize themselves to be governed by Queen Elizabeth, but not, in internal matters, by Tony Blair. They rely on the U.K. for defense and for many external affairs issues, but do have the authority to communicate officially directly with foreign governments.

How do Channel Island gun laws differ from those of the U.K.? Derek Bernard, a pistol shooter from Jersey, explains:

Guernsey does not allow self-loading, centre fire rifles; Jersey does. Guernsey copied the UK 1988 Act [a ban on such guns] in this regard in the mid-90s. Guernsey, through the huge, almost unconstrained power of being able to add “conditions” to Firearm Certificates, rather than through statute, prevents the storage of ammunition at home and introduced a bureaucratic nonsense whereby the Certificate-holders who cannot be trusted to hold the ammunition at home, issue it to each other at the designated storage site. This adds considerable bureaucracy to the process of shooters traveling to away matches. It also prevents home loading, which would be critical if there were many active centre fire pistol shooters left; but, since the few that are left seem “happy” to use factory ammo, it doesn’t seem to cause much heartache. In Jersey, home storage and home loading are allowed within the specific quantities on the Certificate. For some years Jersey authorities have normally granted whatever quantities have been requested. The awful power to add conditions is universal in all 8 jurisdictions in the British Isles.

In Guernsey the licensing authority is the Police force, as in the UK. In Jersey, the Connetable (Mayor) of each of the 12 Parishes, is the licensing authority, but they will normally follow any recommendation of the Police that may be made with the report on criminal record. The Guernsey Licence has to be renewed every 3 years; the Jersey every 5 years.

Guernsey has adopted the UK approach to airguns: outside the Certificate and registration systems, providing rifles have muzzle energies below 12ft/lb and pistols below 6ft/lb. In Jersey everything above "soft air" toys is on Certificate and subject to registration. Until a few years ago Jersey regarded even soft air toys as firearms, which meant that their lawful importation, sale and possession was effectively impossible. Largely as a result the relatively new sport of Field Target air rifle shooting flourishes in Guernsey, but failed to get off the ground in Jersey. Guernsey police "approve" an individual applicant’s security arrangements. This used to be the effective situation in Jersey, but since the 2000 Law makes it clear that it is the certificate-holder’s responsibility to take precautions to prevent unauthorised possession, this inspection has ceased. I am not aware of a prosecution of a certificate-holder for inadequate security since the new Law came in. But in 2002/3 the Jersey Police probably spent about £500,000 searching out technical trivia and prosecuting about 25 people for e.g. Certificates that haven’t been renewed in time.

The Isle of Man also appears to have a status by which it is not subject to U.K. laws for domestic affairs. The Isle of Man was ruled by a Norwegian family until 1275, after that by the Scottish crown, and not until 1765 by the U.K.

It is home to the world’s oldest continuously operating parliament, the Tynwald, which has held the sovereignty since 979 a.d. The Tynwald is composed of the Legislative Council (upper house, 10 members; most elected indirectly, plus some ex officio) and the House of Keys (directly elected lower house, 24 members).

"[A]lthough English law does not extend to the Isle of Man, the Manx legal system is based on the principles of English common law," Wikipedia explains.

As in many Commonwealth nations, the legal but rare, course for an appeal of a judicial decision in the Isle of Man is to the Judicial Committee of the Privy Council in London. Within the Isle of Man itself, the High Court judges of the Isle are known as “Deemsters” (a Viking-era term).

I am not familiar with the details of the Manx gun laws, other than the fact that handguns have not been prohibited.

Commenters are welcome to share additional information about the Channel Islands and the Isle of Man, in regards to government status, and gun laws.

12 Comments


David Kopel , January 23, 2006 at 3:32pm] 1 Trackbacks / Possibly More Trackbacks

Self-Defense in Asian Religions:

That's the topic of my latest article, to be published this fall in the Journal on Firearms & Public Policy. The article looks at Confucianism (in detail), Taoism (in detail), Hinduism (briefly, with some discussion of Gandhi), Jainism (very briefly), Sikhism (also very brief), and Buddhism (at great length). The article also examines the spiritual aspects of the martial arts. For all the religions, the article looks at the scriptures and the historical practice of the religion.

Thoughtful comments and suggestions are welcome, either in the Comments section below, or in private e-mail via the e-mail link on my home page. Please keep the comments focused on the issues of religious ethics (and not the usual pro/con arguments on gun control, etc.). Please comment if, and only if, you have something useful to add to the discussion after reading the article (or at least the portion of the article covering the religion about which you wish to comment).

20 Comments


David Kopel , January 9, 2006 at 2:18am] 1 Trackbacks / Possibly More Trackbacks

Canadian Election Poll:

According to Saturday data from CPAC-SES Nightly Tracking Poll, the current Canadian national election race is "neck and neck. The Conservatives draw 34% and the governing Liberals have 32%. The further-left New Democratic Party attracts 17%, while the Bloc Quebecois is at 11%. The Greens are at 6%, and undecided is 17%.

The CPAC-SES polling shows strong regional differences. In "Atlantic Canada", the Liberals are very far ahead. The Bloq Quebecois has an enormous lead in Quebec.

"Western Canada" also has a clear favorite, the Conservatives, who lead by 16%.

The battleground is Ontario, where the Liberals and Conservatives each have 37%, while the NDP pulls 21%.

In national elections, Ontario has often delivered the key votes to put the Liberals over the top. Yet in provincial elections, Ontario has sometimes chosen conservative governments.

The NDP, while generally to the left of the Liberals on fiscal policy, is sometimes supportive of gun-owner rights. The Liberal leadership, although not all Liberal M.P.s, has been extremely hostile to the notion that gun owners even have "rights", and has promoted the view in U.N. fora that U.S.-style gun policies are a violation of international human rights law.

NDP leader Jack Layton told Saskatoon's The Star Phoenix: "We find that there's a broad agreement that (the registry) hasn't been well set-up. It's been totally mismanaged and many people agree that it's got to be fundamentally changed." The Star Phoenix writes that Layton "says the registry punishes people who own guns even if they have legitimate reasons." The paper also reports that Layton favors adding handguns to the controversial national registry. (Legally-owned Canadian handguns have been nationally registered since 1934, in their own registry.)

Layton continued: "The way it's [the long gun registry's] been set up, it leaves gun owners wondering if the federal government thinks that merely because they have a long gun they are criminal and that's not right."

Conservative Leader Stephen Harper argues for abolishing new registry of long guns, while increasing mandatory sentences for some gun crimes, and creating a new five-year mandatory minimum for breaking and entering with the intent to steal a gun.

13 Comments


David Kopel , January 5, 2006 at 2:08am] 0 Trackbacks / Possibly More Trackbacks

Blue Book Abuse, the Colorado Governor's Race, and More:

My father, Jerry Kopel, is a columnist for the Colorado Statesman, Colorado's weekly political newspaper. Before that, he served for 22 years as a Democratic State Representative from Denver. Before that, he worked for several Colorado newspapers, including the Rocky Mountain News (for which I currently write a media column). Here's a sample of his recent columns, all of which are available on his website:

Analyzing the 2006 race for Governor, he suggests that Marc Holtzman (who formerly served in Bill Owens' cabinet) will beat Bob Beauprez in the Republican primary, because Holtzman is the candidate with "fire in his belly." On the Democratic side, he predicts that former Denver D.A. Bill Ritter will have trouble with the Democratic base, because of his anti-abortion stance.

The story of Blue Book abuse does not involve the manual of legal citation. "The Blue Book" is also the name of a state guide about ballot issues which is mailed to every voter before elections. The Colorado Constitution specifies that the text of the Blue Book--describing the ballot issues, and summarizing pro and con arguments--must be written by non-partisan legislative staff. Yet a recent decision of the Colorado Court of Appeals (the intermediate appellate court) allowed the legislature to get away with writing a statute that in effect nullified the state Constitution, by authorizing legislators to tamper with the Blue Book wording.

The shady financial dealings of the CU Foundation, which has provided enormous funding to various administrators and programs at the University of Colorado, has become a major controversy in Colorado. A December 19 column details how my father attempted to lead a legislative investigation of the CU Foundation's finances, but was stymied by legislative leadership which did not want to dig very deeply.

Colorado, like many states, has "Sunrise/Sunset" legislation, which requires that bills to impose new licensing on a profession must go through a special "sunrise" study process. All licensing regulations for professions are supposed to "sunset" on a regular schedule, unless the legislature chooses to renew them. (My dad sponsored the first such law in the United States, in 1974.) In the 2006 legislature, one faction of naturopaths (those with degrees from four-year naturopathic schools) will make their third try to attempt to outlaw the practice of naturopathy by anyone else.

Meanwhile, law enforcement lobbies will push for professional licensing for burglar alarm installers. The claim is that licensing will reduce the number of false alarms. Yet a study by Colorado's Department of Regulatory Agencies concluded that false alarms were the result of consumer behavior, and licensing of installers would not reduce false alarms. 4 Comments


David Kopel , January 3, 2006 at 7:35pm] 0 Trackbacks / Possibly More Trackbacks

Denver University Bar Passage:

The University of Denver's Sturm College of Law recently concluded a study of the unacceptably high bar exam failure rate of many of its graduates. (Summary here.) The study found that students whose LSATs were in the bottom 20% of admitted students, and whose first-year grades were in the bottom 20%, were very unlikely to pass the bar. The administration has implemented a program to address the problem, but the professors who conducted the bar exam passage study are skeptical. Professor Sam Kamin writes:

The data that Professor Joyce Sterling and I have collected on more than 2,000 DU graduates indicate that curricular and extra-curricular choices that individual students make – whether to take bar classes, whether to do externships, whether to participate in the student law office, etc. – have little if any significant impact on their bar exam success. Thus, I am concerned that some of the proposed solutions – principally requiring more bar classes and in-class exams – will have no impact on bar passage and might mislead students into believing that this complex problem has a simple solution.

Professor Sterling and I found that the best predictors of poor bar exam performance are very low LSAT scores and low law school grades. Thus, the data indicate that instead of making broad curricular or pedagogical changes, the most likely path to improving our bar pass rate is to cease admitting students without a substantial likelihood of bar exam success, to identify at-risk students among those admitted, to help them develop the skills they need to succeed in law school, and to fail out those that we cannot find a way to help.

UPDATE: A commenter asks for DU's ranking. According to the latest U.S. News & World Report ranking, DU is in a tie for 95th place. Although it's not top tier, it is ahead of dozens of other law schools, many of which, I suspect, also have abysmal bar passage rates for the bottom 20% of their students.

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David Kopel, January 3, 2006 at 6:35pm] 0 Trackbacks / Possibly More Trackbacks

2005 Year in Review: Second Amendment and Federal Law

For the Right to Keep and Bear Arms, the past year was an outstanding one, at the Congressional level. The most significant action, of course, was the passage of the Protection of Lawful Commerce in Firearms Act, designed to prohibit abusive lawsuits against gun manufacturers and gun stores. (Extended blog entry thereon is here.) The final version contained a few mild gun control items, none of them seriously dangerous.

Congress also enacted several other, less-noticed, laws to protect Second Amendment rights. These were:

An appropriations rider which ends a policy, begun by the Clinton State Department, of implementing an unratified 1997 treaty (the Organization of American States' "Convention Against The Illicit Manufacturing Of And Trafficking In Firearms, Ammunition, Explosives, And Other Related Materials") by requiring an export license for delivery to Canada of replacement parts for firearms repair. The exemption applies only to orders of less than $500, and only for some gun components.

An appropriations rider to end an administrative abuse, begun in the Clinton Presidency, by which the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) obstructed the re-importation of American-manufactured firearms on the BATFE's "curios" and "relics" list.

Strengthening enforcement of federal law requirement that when local law enforcement receives a report of a multiple handgun purchase by an individual, and the individual is legally allowed to purchase such guns, the multiple sales report must be destroyed within 20 days.

Exemption of custom gunsmiths who produce less than 50 guns per year from paying the federal excise tax on firearms manufacturer. In most cases, the tax was already paid for the original gun which is being customized.

Strengthening the armed pilots program by ordering the Department of Homeland Security to consider changes in the pilot training program (which is currently run in a remote, inconvenient location, at inflexible times), requiring the DHS to issue badges to trained pilots, and requiring DHS to implement a pilot program allowing some pilots to carry their guns in places other than the cockpit.

Significant Second Amendment protection issues for Congress in 2005 will likely include repeal of the D.C. ban on handgun possession and on possession of long guns in a condition usable for home defense; prohibiting state or local governments from confiscating firearms from law-abiding citizens (as New Orleans and St. Tammany Parish did after Katrina), addressing BATFE abuses, and taking action against United Nations efforts to destroy American gun rights.

Except for the amendments on the Protection of Lawful Commerce bill, no anti-gun legislation was enacted by Congress in 2005.

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