Next step: Repeal the individual mandate because it is unconstitutional

David Kopel • June 29, 2012 7:30 pm

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress's own evaluation of whether the Bank was "necessary" in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, "equal protection," had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson's lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the "bank battle" was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The "mandate battle" may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Is the individual mandate a "tax" according to the original meaning?

David Kopel • June 29, 2012 6:30 pm

Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.

NFIB as Marbury

David Kopel • June 29, 2012 6:25 pm

My article yesterday for Scotusblog discussed the tremendous importance of the Court's 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the "evolving Constitution" completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court's vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts' motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court.

Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more

David Kopel • June 29, 2012 5:46 pm

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here's the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is "proper" is an entirely different question from whether it is "necessary." And CJ Roberts' opinion is the first in Supreme Court history to find that a law which is "necessary" is not proper. Ilya's amicus brief was the key brief on the necessity of making separate inquiries into "necessary" and "proper."

That's not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are "incidental" to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall's Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall's essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way. As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman's warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we'll find out if he's right. If you're assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.

OSHA targets shooting range

David Kopel • June 23, 2012 3:40 am

The federal Occupational Safety and Health Administration has issued a citation, along with a proposed fine of $111,000 fine (OSHA press release here), against Illinois Gun Works–a gun store and gunsmith business which has a shooting range and teaches safety classes. HT Instapundit and David Codrea. In a November 2009 article for the NRA magazine America's 1st Freedom, I warned about the dangers of President Obama's nomination of David Michaels as Assistant Secretary of Labor for Occupational Safety and Health (head of OSHA), based on Michaels' well-established record as an anti-gun advocate.

Many of alleged OSHA violations at the safety training range involved noise exposure for the instructors. Among OSHA's suggestions were to eliminate training in "larger caliber" handguns such as "9 mm Luger and/or .45 Colt" and substitute "handguns of smaller caliber," such as .22LR. And "Prohibition of any shotguns and/or rifles firing in the firing range." (p. 6). In other words, eliminate training for all firearms except those which are least likely to have the stopping power to be effective for self-defense. And ensure that the range can never provide students with personal instruction in the use of the firearms which constitute the vast majority of firearms which people actually own.

Among the "violations" noted in the citation: An instructor on the range wore Howard Leight Impact Sport Electronic Earmuffs, which allegedly provided insufficient noise protection. (p. 11). I've never used the Howard Leight brand, but I have used electronic muffs from Peltor and from Dillon. Electronic muffs are the perfect choice for hearing protection and range safety, especially for an instructor. When the muffs detect a sound spike, they instantly shut down, reducing the noise to a comfortable level. Unlike passive muffs, electronic muffs do not block sound at other times, so it is much easier for the instructor to communicate with students, and to hear everything going on in the area. Indeed, normal sounds (but not gunshots) can be amplified by the muff's electronics, if the user so chooses.

My Peltor muffs have a Noise Reduction Rating of 19 decibels, while the Howard Leight muffs used by the Illinois Gun Works instructor had a NRR of 22db. I have previously used passive muffs (consisting of foam padding around the ears, with no electronics); passive muffs with a NRR in the low 20s allow more sound than I want, and I find that for passive muffs, a NRR of 29 or higher is much better. However, whatever the rated NRR of the electronic muffs, I can tell you that electronic muffs are far superior at sound reduction compared to passive muffs with much higher ratings. My Peltors with a NRR of 19db make gunshots much quieter than do my passive muffs with a NRR of 30db. Yet Illinois Gun Works is being fined because an instructor used superior hearing protection.

Here's another violation: "A gun range instructor conducting shooter instruction was observed reaching down on the range floor to collect a loaded handgun cartridge. The employee was not wearing any hand protection such as gloves. The gun range floor was contaminated with lead. The gun had misfired and it required manual cycling of the barrel slide to remove the defective round which then fell on the gun range floor." (p. 22). This is absurd. Range floors are necessarily going to have lead dust on them. In the course of live fire instruction, there are inevitably going to be some misfeeds, which result in a round falling to the floor. You don't leave live ammunition lying on the floor. And if you're going to be helping students clear misfeeds (step 1: press the small button which releases the magazine so that it drops out of the gun), you can often do so better with bare hands with gloves. After any time on the shooting range, it is essential to wash hands thoroughly with cold water. The notion that picking up a round from the floor is some kind of special danger is ridiculous.

One of OSHA's suggestions for reducing instructor exposure to lead (p. 26): require the use of ammunition without lead primers and/or without lead bullets. But if you're teaching people how to use the guns which they actually own, those people need to use the kind of ammunition that they will actually shoot. Firearms can perform quite differently with different types of ammunition. Semi-autos in particular may have a much higher rate of misfeeds with one type of ammunition than with another; one of the important variables in this is how strongly the user holds the grip (a lighter grip can increase misfeeds, but a grip that is too tight can reduce accuracy). The best way for a user to find out which ammunition works most reliably with her particular gun, accounting for the way she actually holds it, is to try different types of ammunition. And it's all the better if those tryouts have the assistance of an instructor. The OSHA "safety" suggestion to use only unusual and expensive types of ammunition would harm gun user safety.

Another violation: employees used Hoppes #9 solvent for cleaning guns (Hoppes makes lots of gun cleaning material and accessories), but Illinois Gun Works had not relabeled each Hoppes bottle to list all the hazardous chemicals therein. (pp. 54-55). Gun cleaners have solvents, and so the cleaning should be done in a place with good ventilation. But it's hard to see much practical benefit in requiring a store to put new labels on every one of the scores of Hoppes bottles which employees will use during the course of a year.

Not everything in the OSHA citation is as senseless as the items described above. And gun ranges are certainly not the first business in the United States to find themselves being punished by OSHA for things that have little or nothing to do with employee safety. However, if the heavy fine and the citation against Illinois Gun Works are followed by similar enforcement against other gun ranges, there may be many fewer ranges soon.

Fast and Furious explained

David Kopel • June 22, 2012 2:59 am

In a 47-minute podcast from iVoices.org, I provide the history from Operation Wide Receiver in 2006-07, up through the contempt of Congress vote this week.

Is President Obama's assertion of executive privilege valid?

David Kopel • June 20, 2012 3:08 pm

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder's refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious "straw purchasers"–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The "someone else" was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America's 1st Freedom, I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE's management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no "gunwalking" (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama's assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President's assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today's developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

Georgia-Pacific West v NEDC: a good case for certiorari

David Kopel • June 20, 2012 12:35 pm

Court-watchers are wondering if Thursday, June 21, will see the release of Supreme Court rulings on Obamacare or Arizona's laws against illegal aliens. There's another important decision that the Court almost certainly make on Thursday: whether to grant certiorari in Georgia-Pacific West v. Northwest Environment Defense Center. (All the relevant documents are here, on Scotusblog.) Jonathan Adler blogged about it earlier today.

The Georgia-Pacific case involves a complex question of environmental law and regulatory deference, but its economic impact is enormous. In short: the federal Clean Water Act requires that most types of "point source" discharges of pollutants into waters can be allowed if the point source has discharge permit. A classic point source is a sewage discharge pipe from a factory or a municipality, that discharges into a river.

Federal law has separate controls for "non-point source" discharges of pollutants into waters. For example, if pesticides that are sprayed on a golf course run off into a river, that would be a non-point source of water pollution. In practice, most non-point sources involve farming, ranching, forestry and so on. The EPA has particular regulations for run off from such sites.

Now suppose that someone builds a logging road. There road itself is not a "pollution." in any normal sense of the word. It's just made of natural dirt and travel. Rainwater falls on the road, and runs off the road. For many roads, some of the rainwater run-off might eventually end up in a ditch or culvert, and the ditch or culvert might lead to a stream or lake. (The ditch or culvert helps reduce erosion.) Is the the ditch or culvert therefore a "point source" that requires a Clean Water Act discharge permit?

The EPA's answer has always been "no." EPA regulations in 1976 said so explicitly. In 1987, the Clean Water Act was amended to require point source permits for stormwater runoff "associated with industrial activity". CWA section 402(p). In writing regulations to implement the 1987 amendments, the CWA correctly decided the runoff of natural, unpolluted water from logging roads is not covered by section 402(p). One of the reasons that this is correct is that CWA definition of "point source" expressly excludes "agricultural stormwater discharges."

However, the 9th Circuit's decision in Georgia-Pacific held the EPA regulations invalid. 640 F.3d 1063. This creates a direct circuit split with the 8th Circuit's Newton County Wildlife Association v. Rogers, 141 F.3d 803. If the 9th Circuit decision stands, it will essentially shut down logging within the enormous territory of the Circuit. If the 9th Circuit is right, then discharge permits are necessary not only for new roads, but for existing roads–and on private land as well as public land. Obtaining a permit can take years, and the permitting process offers many opportunities for anti-logging activists to monkey wrench and delay. If you wanted to destroy the American timber business, the 9th Circuit's Georgia-Pacific decision is the perfect tool.

Last December, the Supreme Court asked the Solicitor General for a brief regarding Georgia-Pacific's cert. petition. The brief agrees with petitioners (and their amici, including the majority of states Attorneys General) that the Ninth Circuit was wrong. However, the SG urged the Court not to take the case, because the EPA says it is writing new regulations which will supposedly fix the problem.

In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads. This a very important issue for which the nation needs a definite answer.

Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can't issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires.

Besides that, if the 9th Circuit is correct, then EPA "cannot" make the regulatory choice not to require discharge permits for logging roads. Thus, EPA's new rule will itself the subject of further litigation. As long as the 9th Circuit's panel decision in Georgia-Pacific remains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.

If cert. were granted, then the 9th Circuit (or failing that, the Supreme Court) should issue a stay for enforcement of Georgia-Pacific.

Even without a stay, if the Court granted cert., the grant itself would deter many private lawsuits brought under the Georgia-Pacific theory. If suits were brought, most lower courts would probably decide not to issue preliminary injunctions, and not to let the suits move forward, until the Supreme Court decided the case.

As the amicus briefs for the cert. petition explicate, the damage caused by Georgia-Pacific would be enormous. Although Georgia-Pacific involves issue of Chevron/Auer deference (including the question of whether EPA's regulation is ambiguous), the more fundamental question is whether Congress, when enacting the Clean Water Act in 1972 (and then amending it in 1987), and setting up an intensive and strict system of permitting for waste pipes from factories, sewage pipes, and other point sources, meant for that very same system to apply to hundreds of thousands of miles of logging roads. It is implausible to believe that Congress intended to wipe out the timber business, and to destroy the network of hundreds of thousands of logging roads which are used every day by hunters, other outdoor recreationists, farmers, and ranchers. Certainly any proposal in Congress to impose such far-reaching, harmful legislation would have engendered extensive debate.

Congress did not enact such a foolish law, nor did it give EPA the discretion to do so (in whole or in part) by regulation. It is time for the Supreme Court to say so, with finality.

Top 50 Law Professors on Twitter

David Kopel • June 15, 2012 2:08 am

The list was compiled by Clare Kaufman, for WorldwideLearn.com. She explains: "The following top law professors dominate the Twitter-verse, either through the wit, volume or audience. Criteria for selection for this list include the quality of the tweets, the number of followers and the most active users." For whatever reason, I'm not on the list, although based on number of followers, I rank #40. Since SSRN downloads are already a very important item in law faculty rankings, perhaps the day will come when Twitter too will play a role in the ever-escalating status competition among law professors.

Regardless, the Top-50 list might a useful guide for folks who are looking for additional people to follow on Twitter. Not surprisingly, it is dominated by professors who specialize in technology issues. Impressively, Lawrence Lessig, @lessig, bestrides the law prof twitterverse like a colossus, with nearly 200,000 followers–which appears to be (I didn't count) about as many as the other 49 combined. @davekopel has only 0.7% as many followers.

Emmy nomination for 1951 Colorado Inside Out

David Kopel • June 14, 2012 3:24 pm

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year's 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father's first journalism job, in Walsenberg).

We are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I'm busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6.

Weapons Laws of the Russian Federation

David Kopel • June 12, 2012 4:05 pm

For those of who have been waiting for an English translation of Russia's arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

• No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.
• Citizens have the right to acquire shotguns for self-defense and sport.
• After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.
• An individual may own up to five rifles and five shotguns.
• Handguns are prohibited.
• All firearms must be registered.
• Before obtaining one's first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.
• The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.
• In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation's arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

Colombia's National Law of Firearms and Explosives. Full translation of the Colombian statutes, along with historical and narrative explanation. By Jonathan Edward Shaw.

Hungarian Weapons Law of May 2004. English translation and explanation, plus Hungarian text. By Crecy Azincourt.

Mexico's Federal Laws on Firearms and Explosives. By David Kopel.

If you would be interested in writing a paper for this series, please contact me using the information at the bottom of this page.

Podcast on the creation of the Second Amendment

David Kopel • June 8, 2012 5:55 pm

For my co-authored textbook Firearms Law and the Second Amendment, I've been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker's contemporaneous exposition of the original meaning of the Second Amendment. The podcast is 45 minutes. Here are the links for Aspen Publishers web page for the textbook, and the Amazon page. It's also available from BN.com (Barnes & Noble).

D-Day thoughts

David Kopel • June 6, 2012 2:46 pm

In a column from 2000, I examined what military historians suggest might have happened if the D-Day landings had been repulsed. Or what if they had taken place in 1943 instead of 1944? The short answers are that if D-Day had failed, Stalin would have ended up occupying almost all of German, which would have significantly changed the balance of power in the Cold War. Had the Allies invaded France in 1943, rather than invading Sicily, they probably would have made faster progress than they did in 1944. VE Day would have come a year earlier, with the Allies capturing most of Germany.

In 1994, Dan Gifford and I wrote that "D-Day was almost a German holiday." That is, in the darkest days of the war, defending U.S. coastal areas was a crucial concern. Fortunately, the states were able to call forth their self-armed citizen militias for coastal defense, while the U.S. Army and National Guard were busy elsewhere.

Public opinion about the National Rifle Association

David Kopel • June 2, 2012 10:08 pm

In April, a Reuters/Ipsos poll found that the National Rifle Association was viewed favorably by 68% of Americans, and unfavorably by 32%. Unlike most polls, the Reuters poll apparently did not allow "unsure" or "undecided" as a choice. In each of the demographics which the poll provided–Republicans, Democrats, independents, whites, and blacks–the NRA was viewed favorably by at least 55%.

A 2005 Gallup Poll had found a 60/34 favorable/unfavorable view of the NRA. Previous Gallup results were 52/39 (May 2000), 51/39 (April 2000), 51/40 (April 1999, right after the Columbine High School murders), 42/51 (June 1995), and 55/32 (March 1993).

It is interesting to compare the NRA's ratings with support for handgun control. Since 1959, Gallup has been asking "Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?" There have been some small changes in wording over the years, and the question is not a perfect test of support for handgun prohibition; some respondents might interpret "other authorized persons" simply as support for the licensing for handgun owners. However, the Gallup question is the closest thing there is to a 50-year gauge for sentiment for banning handguns.

In October 2011, Gallup found that 26% of Americans (a record low) thought that there should be such a law, and 73% did not. The 26/73 anti-/pro-handgun split is fairly close to the 32/68% anti-/pro-NRA split. After Columbine, 38% wanted the anti-handgun law, and 40% disapproved of NRA.

Likewise, Gallup in May 1993 found 54% in against the proposed law, and 55% approval for NRA.

Thus, generally speaking, over the last two decades, Americans who favor handgun prohibition appear to have accurately identified the NRA as a major obstacle to their wishes, and have viewed the NRA unfavorably. Americans who oppose handgun prohibition have viewed the NRA favorably for the same reason.

As American public opinion has evolved from a majority to a super-majority which supports the right to own a handgun, public opinion has likewise moved towards a super-majority with a favorable view of the NRA.

There are many causes for the evolution, but it seems plausible that at least part of the cause has been the increasing effectiveness of the NRA itself. To the extent that the NRA has convinced some Americans that handguns in the right hands are beneficial, then those Americans may have become more likely to view the NRA favorably. To the extent that popular NRA spokesmen (such as three-term NRA President Charlton Heston) or popular NRA programs (such as Eddie Eagle Gun Safety) have made some Americans view the NRA favorably, some of those Americans may have become less inclined to support handgun prohibition.

Because the NRA has (despite some fierce criticisms by Republicans, including in 2010) continued to support Democrats with good records on the Second Amendment, and to oppose Republicans with bad records, the NRA has avoided the problem of being identified with only a single political party. When an interest group supports only one party, that group will inevitably be viewed unfavorably by most members of the other political party.

And now that even long-time anti-gun advocates such as Hillary Clinton and Charles Schumer have been affirming their support for the Second Amendment individual right, the basic premise with which the NRA is identified has become so widely supported that only politicians in very safe districts dare to dispute it publicly.

Founded in 1871, the NRA views itself as "America's oldest civil rights organization," an embodiment of American freedom values. These days, it seems that most Americans tend to agree.

The Great Gun Control War of the 20th Century -- And its Lessons for Gun Laws Today

David Kopel • May 31, 2012 2:37 pm

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here's the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.

Also recently published in SSRN is a very good draft article by David Hardy, analyzing the four opinions in McDonald v. Chicago. As he persuasively shows, the arguments by Justice Stevens and Breyer against enforcing the Right to Keep and Bear Arms against the states would, if taken seriously, cast serious doubt on the legitimacy of enforcing against the states almost everything else in the Bill of Rights.