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Wednesday, April 30, 2003

PLEDGE OF ALLEGIANCE CERT PETITION The First Amendment geeks among us might be interested in reading the government's petition for cert in the Pledge of Allegiance case. This part is especially good.

Whatever else the Establishment Clause may prohibit, this Court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation, and character of this Nation. That is what the reference to God in the Pledge of Allegiance does. The Pledge is therefore constitutional, as the Seventh Circuit held when confronted with the same Establishment Clause challenge. Because the court of appeals' error is so manifestly contrary to precedent, the Court may wish to consider summary reversal of the decision below.

As you can see from the prominent legal blog How Appealing, this call for a summary reversal is indeed a strong claim.


MORE ON THE MINNESOTA DAILY AND THE CONCEAL CARRY BILL On Monday, I poked fun at the Minnesota Daily for suggesting that the Metrodome would become an free handgun zone. To be fair, it should be noted that there is some question about whether the Gophers could prohibit guns by people unaffiliated with the University, according to this article in the Star Tribune.

A few things should be noted, however. First, despite the absolutism of the headline, it is not at all clear that the legislation would certainly be interpreted to prohibit the University from banning guns at football games. The article only quotes one state legislator to make this argument, hardly a conclusive basis for statutory interpretation.

Second, according to this article, Commission Chairman Roy Terwilliger said he has discussed the gun law with a member of Gov. Tim Pawlenty's staff and has been assured that the governor is open to altering the law if it threatens Dome security. If this is indeed a result of the law, my initial reaction is that it would be very sensible to amend it to allow the University to prohibit handguns at football games, and other similar University functions. There might be reasons not to do that, but I don't know about them.

Third, this article is even more explicit in dismissing the broad claim that the Minnesota Daily editorial staff made in their Monday editorial.
University sports events appear to be standing alone when it comes to difficulty in barring guns.
Quick analysis of the law by officials of local pro teams, commission staff members and a lawyer for the Minnesota State High School League suggests that the Twins, Vikings, Timberwolves and Wild, as well as prep sports teams, can bar gun-carrying spectators.


Monday, April 28, 2003

Hot off the presses, this just in... The MN state Senate has just passed Conceal Carry Reform by a vote of 37-30. If any of you watched the debate in the Senate chamber this evening, it was quite amusing. Two DFLers broke the traditional rules of decorum and opted to instead wear FLAK jackets. If anyone is nuts it's got to be them, not the law abiding citizens who will soon be able to exercise their right to self-defense.


I really should be studying, but after reading today's editorial, I couldn't resist.

The editorial starts, of course, with a thinly-veiled attempt to make anyone who would support such "insane" legislation a crazed gun-nut.
What kind of person would bring a loaded handgun into the Metrodome? And should that kind of person be catered to politically? Such are the questions facing Minnesota state senators as they consider a bill that would ease requirements for concealed handgun permits.

The silly stereotyping is bad enough, but even worse is that the editorial board didn't even get their facts straight first. The reference to the Metrodome is based on the following assertion:
Whereas legislators would be protected by a stipulation in the bill barring concealed weapons from state government facilities, places like Minneapolis City Hall, the Metrodome, public parks and the State Fair are directly specified to be free range for gun-toting “enthusiasts.”

This suggests that Twins and Vikings games would be declared by state law to be zones in which guns could not be prohibited. However, the Minnesota Daily editorial board is apparently the only group of journalists that have noticed this part of the legislation, which is presumably written in disappearing invisible ink, the kind you made with lemon juice when you were a kid that only appears when you hold it next to a light bulb. Even the Star Tribune engages in less scaremongering about the legislation when they actually report on the concerns of those in charge of public facilities. According to the Strib:
Under the proposed law, a public building leased or controlled even temporarily by a private organization -- say, the Vikings during a game at the Metrodome or a music promoter during a concert at Xcel Energy Center -- could post signs prohibiting firearms.

In other words, the editorial staff is either being deliberately misleading or they simply have already made up their minds about their bill and don't want to be confused with the facts. The concern of people running facilities like the Metrodome is not the illegality of their attempts to prohibit guns. They are concerned that with more people carrying guns, more people will try to bring them into the facilities. However, people can carry guns now if they don't get caught, and as a result, the Metrodome, Target Center, and the Xcel Center already have security that is supposed to catch gun carriers. If that security is unable to take care of the problem after this bill is passed, there is no reason to believe spectators at those places are any safer without the bill.

Then the editorial board steps in way over their collective heads.
While most gun lovers are responsible citizens, the idea that a heavily armed citizenry is a deterrent for crime is highly debatable and unverifiable. Studies have shown concealed handguns deter criminals. Studies have also shown more guns encourage more gun deaths. In the end, the sources for gun-related studies tend to be more important than the actual information. These studies are extremely difficult to conduct, are often based correlation rather than proven causation and are highly dependent on who is paying for the information.

This claim would be interesting if it wasn't vague enough to be almost unfalsifiable. Citing some of the unnamed studies would be helpful, for example. However, I say almost unfalsifiable because it isn't even internally consistent. They start with this claim, "the idea that a heavily armed citizenry is a deterrent for crime is highly debatable and unverifiable." However, they follow by conceding that studies "have shown concealed handguns deter criminals." Come again? I thought that idea was highly debateable and unverifiable. This, of course, requires us to ask, What exactly is the debate? Surely, there must be some studies that go the other direction, suggesting that concealed handguns don't deter criminals. However, the editorial writer doesn't even make such a claim, only pointing to studies that have "shown more guns encourage more gun deaths" - a very different and non-responsive claim. It might be true that more concealed handguns both deter criminals and that more accidental gun deaths occur. Since unsubstantiated speculation is all the rage, apparently, let me indulge myself. Because a person doesn't actually have to have a gun to deter a criminal, the criminal only needs to think they might have a gun, the number of deterred crimes would be much higher than the comparative increase in gun accidents. However, even if you concede to the Daily the full weight of the argument they make here, they still aren't showing that the costs of the bill are greater than the benefits. They are, at best, saying that they don't know.

So, since they have no empirical reason to oppose the bill, they return to their silly scare tactics.
Although feeding citizen paranoia could be positive for some people’s security and others’ freedom, the thought of a stadium filled with armed tailgaters or bars filled with drunken, pistol-toting cowboys ought to be enough to disparage the positive qualities of this bill.

I'm not sure who the Daily staff is referring to is paranoid, but considering the demonstrable falsity of this silliness, I will let you draw your own conclusions.

Then, they conclude with this gem.
Whether because of paranoia or posturing, if people want to carry around lethal weapons, they should move to somewhere where public safety is not handed to the judgment of private individuals.

First of all, who is editing the editorial board? This is one of the most confusing sentences I have read this side of Michel Foucault and Judith Butler. Second, where is this place where "public safety is not handed to the judgment of private individuals"? Minnesota certainly isn't one of those places, regardless of whether a conceal and carry bill passes. The only real question is whether public safety is handed to all private individuals or just those willing to break the law. Third, this "if you don't like it just move" is one of the all-time worst arguments known to the human race. The same could be said of those opposing the bill, or to anyone who opposed the war in Iraq, or to those who prefer a Canadian-style health care system.

Maybe there are good arguments against a conceal and carry bill. In fact, I bet there are. The editorial board of the Minnesota Daily hasn't stumbled on any of them.


Sunday, April 27, 2003

Here is a good Economist article on the drug war for those Libertarians among us. I am sure our Con law professors could find an Equal Protection violation in the US drug policy somewhere - see if you can find it in the article! (The article itself is old, but for some reason the website had a link to an older print edition in place of this weeks). It is still an interesting read.


Friday, April 25, 2003

MINNESOTA DAILY - RIGHT WING RAG I was stunned to see in today's Minnesota Daily not one, but two, opinion pieces that were pretty reasonable. Nathan Wagner criticizes the Daily's use of "journalistic ethics" as an excuse not to turn photos of rioters over to the police. The second piece is by Anthony Sanders, a Federalist Society member and Minnesota law student, defending the judicial fitness of Bush nominees who think the powers of the federal government are limited by the Constitution against some pretty ridiculous claims from Chuck Schumer.


WILL THE "NO WAR IN IRAQ" SIGNS GIVE WAY TO "BUSH 2004"? Apparently, President Bush is considering declaring an end to the fighting in Iraq. This, less than 10 days after Bush called on the U.N. to lift the sanctions on Iraq.

Has the Bush administration been infiltrated by the anti-war and anti-sanctions protesters? And if Bush does end the fighting in Iraq, will those protesters support him in 2004? Howard Dean really ought to drop out and endorse Bush.


Thursday, April 24, 2003

CRACKDOWN ON TICKET BROKERS With the Wild and Timberwolves both in the playoffs, naturally there is a high demand for tickets, creating a market for ticket scalpers. This is apparently bringing renewed enforcement at least in Minneapolis of anti-scalping laws.

I have never been a big fan of these laws, even though I have never scalped or bought a ticket from a scalper. If someone wants to buy a ticket for a higher-than-face-value price, they should be able to buy it rather than for that ticket to go to waste or the potential buyer be left out of luck. This is especially true when a lot of tickets are tied up in season tickets, and not all of the season ticket holders want to go to every single game. The arguments I've heard in favor of these laws aren't so hot, usually along the lines that ticket scalping sometimes results in other bad things, like people buying huge blocks of tickets just to scalp, but it seems like a better idea to prohibit those specific actions rather than enforce blanket prohibitions on ticket brokering. Of course, anti-scalping laws aren't really going to end scalping anyway, so maybe this isn't really that big of a deal. However, it seems like a collosal waste of law enforcement resources to enforce the laws, unless the whole point is to raise money through fines.


SHOULD EARTH DAY BE A CELEBRATION OF CAPITALISM? This commentary, from Jerry Taylor of the CATO Institute, provides some food for thought about wealth creation and environmental protection. Taylor argues that "Capitalism can save more lives threatened by environmental pollution than all the environmental organizations combined," and "free markets are an ally -- not an enemy -- of Mother Earth." An interesting refutation to the radical anti-capitalists and anti-corporatists in the green movement.
Thanks to Anthony Sanders for the pointer.


Wednesday, April 23, 2003

ONE MURDER OR TWO? The double homicide charges against Scott Peterson for the murder of his wife and unborn child are giving the National Organization of Women fits, according to Susan Konig on National Review Online. The NOW seems convinced that the homicide charges regarding the unborn child is some part of vast anti-abortion conspiracy attempting to sneak a definition into the law that will ban abortion before anyone notices.

It baffles me the extent some of the hardcore right-to-abortion proponents will go to prevent any possibility that a fetus would recieve heightened protections in any area. As much as it pains me to offer strategic advice, it seems like they could draw a distinction between mothers who choose to keep their babies and those who choose to abort them, in much the same way that forced abortions such as those in China can be condemned. In fact, it seems like if "pro-choice" groups like NOW were serious about protecting the mother's choice, they should be willing to punish whoever deprived her of that choice (whether that person is Scott Peterson or not) with a crime that at least roughly equivalent to homicide.


Newt Gingrich gave an interesting speech yesterday at the American Enterprise Institute. In it, he argued that unless the State Department can make bold changes, the reputation of the United States in the global arena will be harmed and our ability to effect change hampered. Our reputation is harmed when we fail diplomatically, becasue we are then required to win militarily. The Center for Security Policy called the speech "one of the most important foreign policy addresses by a former national leader since Winston Churchill" gave his Fulton (Iron Curtain) Speech in March of 1946. I don't know about that, but read the speech if you get the chance.


ALABAMA: BATTLEGROUND STATE 2004? The 2004 GOP Convention is scheduled later than is allowed for by Alabama election law, so if the law isn't changed, President Bush (or any Republican candidate, for that matter) would not be on the ballot. If Bush was a write-in, as this article suggests he might be in the absence of new legislation, would he still win? I would guess that he probably has a pretty good chance (depending on lots of unpredictable factors, of course) anyway.


Tuesday, April 22, 2003

I got a kick out of this article. Makes the complaints about Halliburton getting Iraq contracts for things that they are one of less than 10 companies in the world qualified to do seem even more silly than they were on their face.

U.S. Finds Iraq Contractor with No Political Ties
(2003-04-19) -- The U.S. government has awarded a $7.9 Billion contract for the redevelopment of Iraq's oil industry to the only company it could find that had no political connections.

The White House, under pressure from Democrats to avoid awarding bids to major campaign donors, located the contractor in rural Howard, Pennsylvania.

Bob Yoder, of Howard, who runs a small engine repair shop, salvage yard and "groundhog mitigation service", said he would do his best to get Iraq's oil industry "up and humming again."

Mr. Yoder has never contributed to any political campaign and has never voted in an election.

"Between the engine shop and shooting groundhogs, I really don't have time for politics," said Mr. Yoder. "My old lady and I are excited about this deal because we've never flown in an airplane before."

Thanks to Stuart Buck for the pointer.


IS AFFIRMATIVE ACTION UN-AMERICAN? Andrew Hamilton, another 1L here at Minnesota, says it's not today in the Minnesota Daily. Unfortunately, there's not much here that deals with the critical question being addressed in the Michigan affirmative action cases: whether it is permissible for the government to discriminate on the basis of race.

Hamilton makes a few major claims. First, he argues that race still matters.
While we all would prefer to live in a world in which racial distinctions are irrelevant, that is not how things are. According to data compiled by William Kidder, in the mid- 1990s, white law-school applicants at every grade-point-average level were (on average, across all law schools) more likely to be admitted than black applicants at those same GPA levels. If racial distinctions really were irrelevant in our culture, that gap would be nonexistent. We do ourselves and our nation no favors if we ignore such facts merely because they make us uncomfortable.

I'm not sure what this proves. If it proves that there is racial discrimination in law school admissions then I hardly see why more racial discrimination is the solution. If it proves that black applicants with equivalent GPAs tend to have lower LSAT scores, or for some other reason do not have the needed credentials to compete in admissions, discrimination at the law school stage seems like exactly the type of cosmetic solution that we can count on to fail. Additionally, as a constitutional equal protection matter, the argument about remedying societal discrimination has never been successful in the Supreme Court as a basis for remedial discrimination.

Second, Hamilton argues that nobody is really harmed by affirmative action.
But what about the people like me — white applicants whose odds of admission are affected by affirmative action? (Full disclosure: when I applied last year to law schools, I was rejected by several schools that use affirmative action in their admissions procedures.) Are we treated unfairly? I don’t think so, for at least two reasons. First, there are so many white applicants to elite schools that the odds of the average white applicant getting in are quite low anyway; when an admissions committee gives some preference to the few minority applicants, the average white applicant still has just about the same odds. In other words, white applicants who don’t get in are almost uniformly losing out to other white applicants, not to minority applicants. How could I reasonably blame the small number of minority applicants for the fact that many law schools I applied to had hundreds of white applicants with credentials that were comparable to mine? Doing so would be morally indefensible.

Well, in the spirit of full disclosure, I was not rejected by any school that uses affirmative action in their admissions process. However, I am willing to defend Mr. Hamilton's rights even if he isn't. Even if he doesn't know for sure whether he was harmed, the possibility still exists and it seems like he is at least intellectually honest enough about this to admit that. However, the problem with his argument here is that he assumes that it is some significance that lots of other white applicants were also discriminated against. From every racially discriminatory scheme, you can look at the numbers and determine a precise number of people who have been discriminated against. Just because each individual person who is denied admission is not told whether they would have been admitted under a race-neutral system doesn't mean that the discrimination didn't occur. If the system worked the other way, adding points to white applicants or to Asian applicants, I don't think Mr. Hamilton would argue that each individual black student was really harmed because they probably lost their spot to another black student.

Finally, Mr. Hamilton argues that we want to have diverse experiences in law school.
[P]eople rarely complain when a university announces that it wants to have people with diverse interests and talents in its classes. We all agree that classes at elite universities should have athletes and artists, New Englanders and small-town Midwesterners. I surely benefit from examining ideas with athletes and artists. As someone who grew up almost exclusively around other white people, I benefit just as surely from examining those same ideas with members of racial minorities, whose perceptions of politics and (especially) experiences with law enforcement are likely to be much different from mine.

This is pretty much right, but not as an argument in favor of state racial discrimination. To reach the conclusion Mr. Hamilton wants, we need to assume that race should be used as a proxy for ideology or experience, which is exactly the type of racial determinism that I think civil rights activists should be critical of. It is perfectly permissible for a state institution to take into consideration political views and even experiences with the legal system if they really want a diverse student body. I'm not sure most law schools are really interested in an intellectually diverse student body, but that's a whole different kettle of fish. Ultimately, however, the assumption that someone's skin color alone (or more accurately, the box they check on their application) reveals something important about them is difficult to justify as a general matter, and certainly something that I think is prohibited by the Equal Protection Clause.

Hamilton concludes with the familiar sleight-of-hand that we often see from affirmative-action proponents, (not-so) subtly suggesting that those who disagree with him wear long white masks at night and ride around looking for recently-freed slaves to lynch.
Why, then, do so many white people get nervous and defensive when a university or a law school ensures that its classes will have both white students and minority students? There is one explanation, of course: Many white people believe their skin color alone entitles them to elite status. That is, I hope, un-American.

He is, of course, correct that the belief that the belief that white skin entitles one to elite status is un-American (if by un-American he means unconstitutional). However, the same part of the Constitution that he is presumably referring to is about equal protection, and it doesn't make anyone more equal than anyone else.


Welcome to the Fritz Feds! This page stands to offer proof that the University of Minnesota has so far failed to eradicate all ideological diversity from the Walter F. Mondale Hall. Some of us even decided not to vote for Fritz last November.

There is so much more to come. Stay tuned.