Kopel Blog Archive July-August 2012

Attorney General Holder grants BATFE expanded forfeiture powers

David Kopel • August 29, 2012 1:44 pm

"Beer + Pizza = Success." The key formula for law students.

David Kopel • August 19, 2012 2:07 am

During Constitutional Law I at Denver University last Spring, I diagrammed for the students one of the most important study tips for law students: "Beer + Pizza = Success".

No matter how relentlessly a student raises his hand during class, the maximum amount of speaking practice that can come from classroom participation is a few hours over the course of the entire school year. If you go out for beer and pizza with your fellow students, you can have vastly more hours of sharpening your argumentation skills, practicing how to speak persuasively and concisely, finding the strengths and weaknesses in different arguments, and so on. Your beer and pizza time doesn't have to be devoted to rehashing the cases you're studying. Whether you and your friends are talking about politics, sports, or whatever else interests you, you will probably learn a lot from your fellow students, and you will definitely strengthen some of the essential skills for becoming a successful attorney.

At the University of Michigan during the 1980s, pizza and Stroh's beer at The Brown Jug were our key tools for self-directed learning. I have heard that these days some students instead use wine and salad. That may work fine for some people, although I have never seen this tested in the law school context; Michigan in the early 1980s, with Professors such as Francis Allen, Whitmore Gray, Bev Pooley, and Theodore St. Antoine, favored the traditional and rigorous version of the 1L curriculum.

Amicus brief in Woollard v. Gallagher, Maryland right to bear arms case

David Kopel • August 6, 2012 7:57 pm

Earlier today, I filed an amicus brief in Woollard v. Gallagher, currently scheduled for an expedited hearing around October 23 before the Fourth Circuit. The case is an appeal from the decision of the federal district court that Maryland's granting of handgun carry permits only to persons who can prove a specific, imminent threat is unconstitutional. The winning lawyer in the case below was Alan Gura, representing Raymond Woollard and the Second Amendment Foundation.

The brief is filed on behalf of the two major professional associations of police firearms trainers: the International Law Enforcement Educators & Trainers Association (ILEETA); and the International Association of Law Enforcement Firearms Instructors, Inc. (IALEFI). Also joining the brief are Professor Clayton Cramer, and the Independence Institute.

Here's the Summary of Argument:

Strong protection of the constitutional right to the licensed carry of handguns for lawful self-defense does not interfere with police efficacy in cracking down on illegal gun carrying.
Data from law enforcement agencies shows that persons with carry permits are far more law-abiding than the general population. Assertions that licensed carry harms public safety are based on false data from a gun prohibition group.
The case can be resolved without need for a standard of review, because the near-complete suppression of an enumerated constitutional right can never be constitutional.
Maryland law, like the laws of states which generally comply with the Second Amendment, leaves ample discretion for denial of permits to unsuitable applicants, and allows denials for many reasons other than felony conviction.
Upholding the decision of the district court would be consistent with precedent in other states protecting the constitutional right to bear arms.

In addition to the Fourth Circuit's Woollard case, there are major cases on the right to bear arms currently pending before the Seventh Circuit and the Ninth Circuit. There may a good possibility that at least one of them will eventually be heard by the Supreme Court, perhaps in the 2013-14 term.

Eugene Volokh's post below discusses a dissent by the Ninth Circuit's Judge Reinhardt in a capital sentencing case. Judge Reinhardt accurately states that carrying a gun is a Second Amendment right, to make the broader point that carrying a gun is not, in itself, illegitimate behavior. Judge Reinhardt could have strengthened his opinion by citing two cases in which the U.S. Supreme Court reversed capital convictions because the district court had improperly treated gun carrying as evidence of malign, homicidal intent.

The first of these is Gourko v. United States, 153 U.S. 183 (1894). John Gourko was 19 year old Polish immigrant. He lived with his brother Peter in a mining camp in the Choctaw Nation, in what was then the federal Indian Territory of Oklahoma. Peter Carbo, another Polish immigrant, aged 45, has dispute with them over certain loads of coal, which he claimed the Gourko brothers had filched. According to a witness, Carbo threatened "to shoot John like a dog." Carbo was easily capable of violence; he weighed 200 pounds, was very strong, and was considered dangerous. John Gourko, weighing 130 pounds, was considered delicate "and was deemed a quiet peaceable boy."

One holiday, Carbo confronted John Gourko near a post office, shaking a fist in his face, and screaming at him. Witnesses feared the Carbo would kill John on the spot. About half an hour later, there was a confrontation between Carbo and John Gourko in a billiard hall. They argued, and then went outside. Gourko fired his pistol once over Carbo's head, then twice to the body, killing him.

The Supreme Court's opinion was written by Justice John Marshall Harlan. Justice Harlan noted that Gourko's act might have been lawful self-defense, but that was not the precise issue as the case had come to the Supreme Court. Instead, the question was the validity of District Judge Isaac Parker's instructions to the jury about the difference between premeditated murder and manslaughter. Judge Parker had told the jury that Gourko's carrying of a handgun could be considered evidence of premeditated intent to kill, even if the carrying was purely for self-defense.

Justice Harlan, writing of a unanimous Court, disagreed: "the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes of self-defense, and if, independently of the fact of arming himself, the case tested by what occurred on the occasion of the killing was one of manslaughter only."

Justice Harlan's sympathy for Gourko may have had some basis in Harlan's own life. When Harlan was a young man, his cousin (also named John Harlan) was prosecuted for killing a local character who, Justice Harlan later recalled, "advanced upon John as if to attack him." John Harlan (the cousin, not the future Justice) drew a pistol and killed the attacker. During and after the trial, which resulted in an acquittal on grounds of self-defense, the deceased's "gang" had well-known intentions to kill cousin John Harlan at the first opportunity. Thus, John Harlan (the future Justice) and two other men kept a constant guard on their cousin; during this time, the two men and the future Justice "were heavily armed." Justice John Harlan was also personally familiar with non-criminal reasons for carrying firearms, being an avid hunter and target shooter, and a commander of the Kentucky militia during the Civil War.

Gourko's conviction and death sentence were reversed, and he was granted a new trial. He pled guilty to manslaughter, and was sentenced to four years in prison.

The second case is Thompson v. United States, 155 U.S. 271 (1894):

Thompson was decided in the term following Gourko, and it too came from District Judge Parker's court. Thomas Thompson was a 17 year old Creek Indian farmboy. Half a mile away lived Charles Hermes, who made threats to kill Thompson if Thompson came near the Hermes farm.

One afternoon, Thompson was sent to deliver a bundle to a woman who lived a few miles away. The only road went by the Hermes farm. Passing by the farm, Thompson got into a heated argument with Hermes, who repeated his threats to kill Thompson.

After delivering the bundle, Thompson, realizing that the only road home was the road that ran by the Hermes property, borrowed a Winchester rifle.

As Thompson rode home, Hermes' sons called out to him. One of the sons, Charles Hermes, started towards a gun that was propped on a fence. Thompson, believing that Charles Hermes intended to kill him, shot Charles Hermes first, and then fled on horseback.

Charged with murder, Thompson pleaded self-defense. In the Thompson trial, Judge Parker instructed the jury that the jury was free to conclude that Thompson had provoked the trouble, and therefore lost his right to self-defense; according to Judge Parker, Thompson could be viewed as the instigator of the confrontation because he had armed himself and returned to a place where he knew Hermes would be.

Similarly, the judge instructed the jurors that to the effect that they should not convict Thompson of manslaughter, rather than murder. By arming himself, Thompson had shown the kind of deliberation and premeditation which amounts to murder.

Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson's conviction because of the defective jury instructions. Merely being armed, and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble, or that he intended to kill Hermes, the Court said.

Concluded the Court: the trial court's error "is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U.S., previously cited, the language of which we need not repeat." Thompson was freed, and was not retried. The unanimous opinion was written by Justice George Shiras, Jr.

Gourko and Thompson are among The Self-Defense Cases, a set of decisions from 1893-96, plus the later Brown v. United States, 256 U.S. 335 (1921) (Holmes, J.) ("Detached reflection cannot be demanded in the presence of an uplifted knife."). These are the cases in which develop the no duty to retreat rule, which we today sometimes call "Stand Your Ground." As Justice Harlan wrote in Beard v. United States, 158 U.S. 550, the victim of a violent attack

was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

(Emphasis added.) The cases are discussed in my article The Self-Defense Cases: How the Supreme Court Confronted a Hanging Judge in the Nineteenth Century, 27 Am. J. Crim. L. 294 (2000) (cited in United States v. McElhiney, 275 F.3d 928, 935 n.2 (10th Cir. 2001)). The article contains the citations for all the quotes in this Post.

The weeks-long conference at the United Nations to produce an Arms Trade Treaty is ending without the creation of a treaty. None of the draft treaties which have circulated in the past several days came remotely close to finding consensus support.

The impossibility of achieving consensus involved a wide variety of issues and nations, far beyond the Second Amendment concerns that have been raised by many American citizens.

The 2001 UN Programme of Action on Small Arms remains in effect. Over the last two decades, a large gun control infrastructure has grown up in the United Nations, not only in the headquarters building, but also within many of the UN various commissions and departments. Likewise, there are a significant number of NGOs which have a strong commitment to global gun control, and to using international law and the UN to solve what they consider to be the problem of excessive gun ownership in the United States. The NGOs and their UN allies have successfully used the 2001 PoA to sharply restrict gun ownership in some parts of the world, and they would have used the ATT for the same purpose. That they did not succeed in creating an ATT may be very disappointing to them; they are not going to go away, or relent in the pursuit of their objectives.

But in their pursuit, they are not going to have the new weapon of an ATT. This is good news for human rights worldwide, especially for the fundamental human right of self-defense against violent criminals, and against violent criminal tyrannical governments.

In an article today for National Review Online, I detail how "Broadly supported post-Columbine reforms balance gun rights and gun control":

After the Columbine High School murders, Colorado enacted eight specific gun-law reforms. Three of these reforms are examples of what people usually call "gun control," and five of them are in the "gun rights" category. But to many Coloradoans, all eight of the measures are cohesive and consistent. They are all based on the same principles: Guns in the wrong hands are very dangerous, and guns in the right hands protect public safety. Colorado strengthened its laws to make it harder for the wrong people to acquire guns and simultaneously strengthened laws to remove obstacles to the use and carrying of firearms by law-abiding citizens. As a whole, the laws embody a compromise that enjoys broad public support; they settled a gun-policy debate that had raged in Colorado for 15 years. The Colorado consensus has already saved lives.

That's the title of my article yesterday in USA Today, suggesting how the media can try to cover the crime in a way that does not increase the risk of a copycat effect.

Also on USA Today, I participated in a Web Chat with a pair of representatives of the Brady Campaign, available here.

A New York Times article today on Colorado gun laws quotes Eugene Volokh and me.

Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a "tax," even though the Obamacare statute calls it a "penalty."

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer's income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a "tax,"a "penalty," or anything else. No one would doubt that this law imposed a tax, and was within Congress's power to tax. That conclusion should not change simply because Congress used the word "penalty" to describe the payment. Interpreting such a law to be a tax would hardly "[i]mpos[e] a tax through judicial legislation." Post, at 25. Rather, it would give practical effect to the Legislature's enactment.

The above language is a plausible argument for the Chief Justice's tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, "income" subject to the federal income tax must be "undeniable accessions to wealth." Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress's Big Insurance pets, like the decision not to buy a particular type of window, is not an "accession to wealth." The decision provides no additional income to the person.

So let's accept Chief Justice Roberts' theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. "An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the "Direct Tax Act," to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries's Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate "tax" is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson's 27 minute podcast on the subject, for iVoices.org.