Conservative Libertarian Outpost

Dave Kopel’s latest newsletter (see the link on the blog roll) unloads yet again with logic and reason. Bits and snips, with links below.

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Aiming for Liberty

David Kopel
Merril Press
December 4, 2009
http://www.amazon.com/Aiming-LIberty-Present-Freedom-Self-Defense/dp/0936783583/davekopel-20/
http://search.barnesandnoble.com/Aiming-for-Liberty/David-B-Kopel/e/9780936783581/?itm=2

Videocast on Aiming for Liberty

Dave Kopel with Jon Caldara
Independent Thinking, KBPI 12, Denver
November 27, 2009
http://www.youtube.com/view_play_list?p=EB5652D760AC2EAB
http://www.youtube.com/watch?v=XaJgIjxmFdQ
http://www.youtube.com/watch?v=mymokhfqhJk
http://www.youtube.com/watch?v=Ud36zktV3F8
http://www.youtube.com/view_play_list?p=EB5652D760AC2EAB

Dave and Independence Institute President and program host Jon Caldara discuss his new book on this KBPI television broadcast, now available on YouTube. Part 1 is here: http://www.youtube.com/watch?v=XaJgIjxmFdQ, Part 2, here: http://www.youtube.com/watch?v=mymokhfqhJk and Part 3, here: http://www.youtube.com/watch?v=Ud36zktV3F8. The playlist with all three is here: http://www.youtube.com/view_play_list?p=EB5652D760AC2EAB

New Law Review Articles by Kopel

The Right to Arms in the Living Constitution

David B. Kopel
Cardozo Law Review de Novo, Forthcoming; U. Denver Legal Studies Research Paper No. 09-34
December 17, 2009
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524103

“This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with �lite legal opinion, except for a period in part of the twentieth century.”

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich

David B. Kopel with Clayton E. Cramer
Widener Law Journal, Vol. 19, 2010, forthcoming
December 19, 2009
http://ssrn.com/abstract=1502925

Kopel and Cramer examine the historical underpinnings of historian Nathan Kozuskanich’s claim that the right to arms in the 1776 Pennsylvania constitution only guaranteed a right to serve in the commonwealth’s militia.

Kopel on the Health Bill

Health Bill and Gun Ownership

David Kopel
The Volokh Conspiracy
November 24, 2009
http://volokh.com/2009/11/24/health-bill-and-gun-ownership/

Dave responds to a putative rebutal of his concerns that the Government’s expanded role in health care may lead to ‘wellness programs’ that preclude firearms ownership.

Is the Senate health plan anti-gun?

Susan Ferrechio
The Washington Examiner
November 24, 2009
http://www.washingtonexaminer.com/politics/71875287.html

Ferrechio’s article includes Dave’s concern that a government putting itself in charge of people’s health may decides that habits such as firearms ownership are prohibitively expensive.

What’s that Smell?

Dave Kopel
America’s 1st Freedom
December, 2009
http://davekopel.org/2A/Mags/ACORN.htm

“Nearly everyone has heard of the corruption-plagued organization ACORN. Yet many gun owners are unaware of the organization’s strong anti-gun activities and ties.”

Missouri Court Upholds Statute Against Gun Possession While Intoxicated

David Kopel
The Volokh Conspiracy
November 20, 2009
http://volokh.com/2009/11/20/missouri-court-uphelds-statute-against-gun-possession-while-intoxicated/

“In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to ‘actual or physical control.’ So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.”

Bloggingheads TV on Moses as the essential American hero

David Kopel
The Volokh Conspiracy
November 10, 2009
http://tinyurl.com/ybn3ton

Dave here agrees with Bruce Feiler’s argument, in an interview on Robert Wright’s BloggingHeadsTV, that Moses is a figure of great interest as an exemplar to some of America’s most influential leaders.

United States v. Skoien

United States Court of Appeals for the 7th Circuit
November 18, 2009
http://www.ca7.uscourts.gov/tmp/TL1FFWAJ.pdf
PDF files require Adobe Acrobat Reader or similar software.

The decision refers to Dave’s work on Heller on p.7, note 2.

Another Good Night for the Second Amendment

David Kopel
The Volokh Conspiracy
November 4, 2009
http://volokh.com/2009/11/04/another-good-night-for-the-second-amendment/

“In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.”

Will the Arms Trade Treaty Provide Effective Embargos on Human Rights Violators?

David Kopel
The Volokh Conspiracy
November 2, 2009
http://volokh.com/2009/11/02/will-the-arms-trade-treaty-provide-effective-embargos-on-human-rights-violators/

“Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a ‘right’ of governments to acquire arms. This ‘right’ could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.”

The Most Important Right to Arms Vote of 2009

David Kopel
The Volokh Conspiracy
November 4, 2009
http://volokh.com/2009/11/04/the-most-important-right-to-arms-vote-of-2009/

“Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.”

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Kopel on McDonald v. Chicago

The Kopel Amicus Brief

Brief Summary of the Kopel Brief

David B. Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/kopel-brief-in-mcdonald-v-chicago/

Here is a brief summary of the complete amicus brief, linked below, that Dave has written for the case of McDonald v. Chicago

Amicus Brief in McDonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, Et Al.

David B. Kopel
Independence Institute; Denver University, Sturm College of Law
November 22, 2009
http://ssrn.com/abstract=1511425

Here is a link to the full text of Dave’s brief on this important post-Heller case.

McDonald v. Chicago

Dave Kopel with Jon Caldara
Dave Kopel’s Second Amendment Podcast
December 1, 2009
http://audio.ivoices.org/mp3/iipodcast353.mp3

Kopel and Caldara discuss Dave’s completed amicus brief and the importance of this case.

JoshCasts: Interview with Dave Kopel on McDonald v. Chicago

Dave Kopel with Josh Blackman
Josh Blackman’s Blog
November 23, 2009
http://joshblackman.com/blog/?p=2540

Here’s a podcast in which Law Clerk and Blogger-Tweeter Josh Blackman interviews Dave about the McDonald v. Chicago brief.

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Dave’s Blogging on the Other Briefs in McDonald v. Chicago

Congressional brief in McDonald v. Chicago

David Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/congressional-brief-in-mcdonald-v-chicago/

Here is Dave’s reaction to the Congressional brief filed in the McDonald case. “Counsel of Record is former Solicitor General Paul D. Clement. Much of the brief recapitulates the lengthy historical record of congressional action (including but not limited to Reconstruction) to protect the individual right to arms from federal or state infringement.”

Academics for the Second Amendment brief in McDonald

David Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/academics-for-the-second-amendment-brief-in-mcdonald/

“Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials.”

McDonald amicus: Don’t trust Fairman and Berger

David Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/mcdonald-amicus-dont-trust-fairman-and-berger/

“Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: ‘Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.’ ”

Cato brief in McDonald v. Chicago

David Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/cato-brief-in-mcdonald-v-chicago/

“An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.”

Institute for Justice brief in McDonald v. Chicago

David Kopel
The Volokh Conspiracy
November 23, 2009
http://volokh.com/2009/11/23/institute-for-justice-brief-in-mcdonald-v-chicago/

“The most important part of the brief is Part III, which begins: ‘To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.’ The brief then goes on to argue that the the Court should resist suggestions that it hold that the Privileges or Immunities clause makes the first eight amendments applicable against the states, but does nothing else.”

McDonald amicus briefs: Academics, Congress Redux, and California District Attorneys

David Kopel
The Volokh Conspiracy
November 25, 2009
http://volokh.com/2009/11/25/mcdonald-amicus-briefs-academics-and-congress-redux/

“The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense.”

Privileges or Immunities Extravaganza

David Kopel
The Volokh Conspiracy
December 21, 2009
http://volokh.com/2009/12/21/privileges-or-immunities-extravaganza/

“The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been plenty of interesting scholarship recently on Privileges or Immunities. Here’s a guide to some of the most important articles.”

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More of Dave’s Podcasts on the Case

Interview with Alan Gura

Dave Kopel with Alan Gura
Dave Kopel’s Second Amendment Podcast
December 7, 2009
http://audio.ivoices.org/mp3/iipodcast358.mp3

Here is Dave’s lengthy (50 minutes) interview with Alan Gura, the lead attorney in the Heller case, now involved in McDonald v. Chicago.

McDonald v. Chicago: Is the 2nd Amendment Incorporated in the 14th Amendment? An Explanation of the Basic Constitutional Issues in the Case.

Dave Kopel with Jon Caldara
Dave Kopel’s Second Amendment Podcast
December 7, 2009
http://audio.ivoices.org/mp3/iipodcast349.mp3

Dave and Jon Caldara discuss Dave’s early work on his amicus brief, and the issues and precedents at stake in McDonald v. Chicago.

Stephen Halbrook Christmas Special.

Dave Kopel with Stephen Halbrook
Dave Kopel’s Second Amendment Podcast
December 17, 2009
http://audio.ivoices.org/mp3/iipodcast362.mp3

Kopel interviews Stephen Halbrook, the leading legal defender of the Second Amendment over the last three decades. 53 minutes.

More available at the sidebar link!