Reason Magazine - Topics > Constitutional Law

See the Anti-Obama Ad That Was Banned in Washington (Maybe)!

jsullum@reason.com (Jacob Sullum) — Wed, 27 Aug 2008 18:43:00 EDT

Texas billionaire Harold Simmons, who helped fund the Swift Boat Veterans for Truth in 2004, this year is backing the American Issues Project (AIP), whose main effort so far is an ad attacking Barack Obama for his association with former Weatherman Bill Ayers. Obama's supporters are so mad about the ad that they want to punish him for it, and they expect the Justice Department to help.

In an August 21 letter to Deputy Assistant Attorney General John Keeney, Obama campaign attorney Bob Bauer argues that Simmons is breaking federal campaign law by failing to register AIP as a political committee and by giving it too much money (about $3 million so far). He says the ad, which asks, "Do you know enough to elect Barack Obama?," clearly qualifies as "express advocacy." He avers that the group, which says it champions "conservative values" such as "smaller government, a strong and ready national defense, lower taxes, and a government that encourages entrepreneurship and new job creation," has no known activities other than running anti-Obama ads and no purpose other than influencing elections. He sent Keeney a second letter on Monday, supplying additional details about AIP, describing the group as "patently illegal," and accusing Simmons of a "willful violation of law."

Election law expert Rick Hasen analyzes AIP's defense, which hinges on whether it qualifies for an exemption to the political committee rules that the Supreme Court carved out in a 1986 decision. Hasen is skeptical that it does, adding, "The group, and perhaps Simmons, could face fines, but by then the election would be over."

So which is the real outrage: that Simmons will get away with it, at worst paying a fine he can easily afford, or that the offense of which he is accused amounts to exercising his First Amendment rights in a manner that offends people in power?

Back when Simmons was casting aspersions on John Kerry's military career, I noted that Democrats and Republicans are equally happy to use election law as a gag to silence people who annoy them. In December I cheered SpeechNow's efforts to eliminate restrictions on express advocacy by independent groups that eschew donations from labor unions and corporations.

[Thanks to John Kluge for the tip.]

Can the 10th Amendment Stop the DEA's Medical Marijuana Raids?

jsullum@reason.com (Jacob Sullum) — Wed, 27 Aug 2008 16:32:00 EDT

Last week U.S. District Judge Jeremy Fogel allowed Californians challenging the Bush administration's medical marijuana policy to proceed with a lawsuit arguing that federal interference in this area violates the 10th Amendment. The plaintiffs, led by the Wo/Men's Alliance for Medical Marijuana in Santa Cruz County, argued that "the federal government has pursued a policy of threatening and utilizing arrests, forfeitures, criminal prosecutions and other punitive means, all with the purpose of rendering California's medical marijuana laws impossible to implement and with the intent of coercing California and its political subdivisions to enact legislation recriminalizing medical marijuana."

The U.S. Supreme Court has upheld the federal government's authority to prosecute patients and their caregivers for possessing medical marijuana even when state law permits them to do so. But Fogel ruled that if the plaintiffs could prove the federal government is deliberately undermining California's medical marijuana policy through selecive enforcement of the Controlled Substances Act and other means, they could make a case that it is unconstitutionally "commandeering" the state legislative process. He cited a concurring opinion by Alex Kozinski in a 2002 case where the U.S. Court of Appeals for the 9th Circuit rejected the federal government's policy of punishing doctors who recommend marijuana as a medicine by revoking the registration that allows them to prescribe controlled substances. "Much as the federal government may prefer that California keep medical marijuana illegal," Kozinski wrote, "it cannot force the state to do so."

This "commandeering" business is a poor substitute for insisting that the federal government exercise only those powers granted by the Constitution, which do not include prohibiting intrastate cultivation and possession of a disfavored plant. But the 10th Amendment argument could open up enough space to let California and other states tinker at the edges of drug policy. By the time this case is resolved, of course, an Obama administration may already have stopped the DEA's harassment of medical marijuana users and providers. That's assuming he keeps his word. It's worth recalling that George W. Bush promised a federalist approach to medical marijuana when he first ran for president, and that the interference challenged by this lawsuit began not under Bush but under Bill Clinton. Bush's predecessor not only wanted to punish people for distributing medical marijuana but provoked the 9th Circuit's rebuke by seeking to punish doctors for expressing politically incorrect opinions about the drug.

Fogel's ruling is here (PDF).

Gun Rights vs. Freedom?

schapman@tribune.com (Steve Chapman) — Mon, 25 Aug 2008 07:00:00 EDT

Supporters of the right to keep and bear arms have long recognized the value of firearms for the defense of life, liberty, and property. But in Florida, a perverse conception of the 2nd Amendment has produced the opposite effect: The cause of gun rights is being used to attack property rights.

In 1987, Florida wisely affirmed personal freedom by letting law-abiding citizens get permits to carry concealed weapons. But this year, the legislature decided it was not enough to let licensees pack in public places. They also should be allowed to take their guns into private venues—even if the property owner objects.

The "take your guns to work" law says anyone with a conceal-carry permit has a legal right to keep his gun locked in his car in the company parking lot. Until recently, companies had the authority to make the rules on their own premises. But when it comes to guns, that freedom is defunct.

The National Rifle Association says any corporation that forbids firearms in its parking areas is violating the 2nd Amendment. That may sound like a promising argument, since the Supreme Court recently struck down a Washington, D.C., handgun ban as an infringement on the constitutional guarantee. It's not.

Robert Levy, the Cato Institute lawyer who participated in the successful challenge of the Washington ordinance, says the Florida law "has nothing to do with the 2nd Amendment." The Constitution, he notes, is a limit on government power, not a constraint on what private individuals or corporations may do.

A municipal government may not forbid guns to everyone on the territory under its control. But, as far as the Constitution is concerned, a private property owner certainly can.

A federal court recently upheld the law, but not because of the Bill of Rights. It said that "the constitutional right to bear arms restricts the actions of only the federal or state governments or their subdivisions, not private actors," and noted that the NRA "has been unable to cite any authority for its position."

So the law doesn't uphold gun rights. What it does do is infringe on property rights. The Florida Chamber of Commerce makes the obvious argument that there is no right "to have a gun in your car on someone else's property" (my emphasis). But the law tells company owners they have no control over workers who insist on bringing deadly weapons onto their premises.

Conceal-carry licensees complain that if they can't keep their guns in their cars, they will have no protection on their way to and from work. That's true. But what about employees who walk, bike, or take the bus? Since the law doesn't give them the right to take their guns into the workplace, they have to leave them at home. Should the state force companies to let workers carry pistols into the factory, office, or day-care center?

This is not a place where the government should substitute its judgment for that of the property owners. One lawyer told The Bradenton Herald, "I have clients that have to carry out terminations. Sometimes that termination is volatile. A lot of places have a policy where they walk the terminated employee to his car. What if you walk the guy to his car that has a gun? I wouldn't want to be that supervisor."

Given that crimes by permit holders are exceedingly rare, the employers who want to ban guns may be running from shadows. But decisions about their safety, and that of their customers and employees, should be theirs to make.

For some people, being temporarily deprived of a firearm creates great anxiety. But for those with a strong aversion to guns, working at a company that allows weapons in cars has the same effect. In a free society, both sets of employees can solve the problem with a simple expedient: exercising their liberty to find a company whose policies suit their preferences.

For the NRA to demand that guns be allowed in every company lot is just as oppressive as it would be for the Brady Center to Prevent Gun Violence to insist they be prohibited in every company lot. When gun-rights advocates oppose the use of government power to suppress firearms, they are advancing freedom. When they use government power to dictate to private companies, they are harming it.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Narcotics Safety Checkpoint a Success

jsullum@reason.com (Jacob Sullum) — Fri, 22 Aug 2008 17:32:00 EDT

Last week the Beauregard Parish Sheriff's Office set up what a local paper described as a "Narcotics Checkpoint" near Starks, Louisiana. The Beauregard Daily News reported that the checkpoint, a response to complaints about drug dealing, was a "success," resulting in three arrests for marijuana and hydrocodone possession, two misdemeanor summonses for marijuana possession, and the discovery of four ounces of pot that someone threw from a car window when he saw the cops. "The Narcotics Checkpoint's main objective was to get the narcotics off of the street," the paper reported, quoting Beauregard Parish Sheriff's Deputy Dale Sharp, who explained that "anything off of the streets is not in the hands of kids or anyone else."

Problem: While the U.S. Supreme Court has upheld DUI and license-and-registration checkpoints aimed at promoting traffic safety, it has said checkpoints aimed at finding illegal drugs are unconstitutional. Solution: Pretend the drug checkpoint was not a drug checkpoint. "They're really safety checkpoints," Chief Deputy Joe Toler told The Drug War Chronicle. "There just happened to be narcotics officers out there, and it just so happened that we did our safety checkpoint in a certain area where the place is known for drug trafficking. It just so happened they were all in the right place at the right time."

When Does a 'Slave' Become a Slave?

jsullum@reason.com (Jacob Sullum) — Wed, 20 Aug 2008 11:38:00 EDT

The first time Jodi met Glenn Marcus, he whipped her and used a knife to carve the word slave on her stomach. During the next five years she kept coming back for more, engaging in BDSM sessions with him that included handcuffing, branding, whipping, and choking. Marcus posted photographs of the sessions on his website, which also featured Jodi's diary entries. In October 1999, she testified, she had "a moment of clarity," and from then on her relationship with Marcus was nonconsensual. Yet she continued to meet with him periodically for four more years, moving from the Midwest to Maryland and later to New York City at his behest. She also worked on his website. She said Marcus at one point told her he would show her pictures to her family and the news media if she left him. She also claimed that she overheard Marcus threaten to harm the family of Joanna, another BDSM partner.

Given the nature of the relationship and Jodi's decision to continue it for years after it supposedly became nonconsensual, there seems to be plenty of room for reasonable doubt that anything Marcus did violated her rights. But as Brian Doherty noted in March 2007, a federal jury convicted Marcus of violating the "sex trafficking" and "forced labor" provisions of the Trafficking Victims Protection Act (TVPA). In September he received a nine-year prison sentence. Last week the U.S. Court of Appeals for the 2nd Circuit overturned (PDF) the convictions, noting that the TVPA was enacted in October 2000, while the actions by Marcus that prosecutors claimed violated the statute occurred between January 1999 and October 2001. The judge failed to instruct the jury that Marcus could not be held liable for violating a law that did not exist. Since it was possible that Marcus was convicted based on his conduct before the TVPA was enacted, the 2nd Circuit said, "the convictions violate the Ex Post Facto Clause."

Marcus can be tried again, based on his post-TVPA conduct. And given the difficulty that the first jury had in distinguishing between a BDSM "slave" and an actual slave, he may well be convicted again.

You Can Buy Wine Online—As Long As You Can Be There in Person

jsullum@reason.com (Jacob Sullum) — Tue, 19 Aug 2008 20:16:00 EDT

In 2005 the U.S. Supreme Court overturned restrictions on wine sales that discriminated against out-of-state vintners. Since then (and before then too), liquor wholesalers have sought to protect their government-granted privileges by portraying direct shipment of boutique wines as the average teenager's favorite way to catch a buzz. In Indiana, for instance, preventing underage alcohol purchases is the rationale for a requirement that any consumer seeking to have wine delivered directly to his home must first have a "face-to-face meeting" with the producer, which is not exactly convenient if you live in Indianapolis and your favorite winery is in California or Oregon. Several Indiana consumers challenged this rule, arguing that it puts out-of-state wineries at a disadvantage.

In a decision (PDF) issued a couple of weeks ago, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit disagreed. Although visiting one California winery might be more difficult for a Hoosier than visiting one Indiana winery, Chief Judge Frank Easterbrook wrote, "Many oenophiles vacation in wine country, and on a tour through Napa Valley to sample the vintners' wares a person could sign up for direct shipments from dozens of wineries." By contrast, "Wine tourism in Indiana is less common, and the state's vineyards—which altogether have fewer than 350 acres under cultivation—are scattered around the state, making it hard for anyone to sign up at more than a few of Indiana's wineries."

Easterbrook likewise was not impressed by the argument that requiring an adult's signature upon delivery and/or online verification of age would be at least as effective at preventing sales to teenagers as requiring face-to-face contact between buyer and seller. Nor does it matter, he said, that teenagers have plenty of other ways to obtain alcohol that do not involve paying premium wine prices and waiting a week or two for delivery. "It is important to remember that we are dealing with effects on the margin," he wrote. "Make it easier for minors to get wine by phone or Internet, and sales to minors will increase."

Although the court left the face-to-face requirement intact, it did overturn a rule barring any winery that sells directly to retailers in other states (thereby acting as "its own wholesaler") from shipping wine to consumers in Indiana. "The statute is neutral in terms," Easterbrook noted, "but in effect it forbids interstate shipments direct to Indiana's consumers, while allowing intrastate shipments."

In short, Indiana oenophiles who find the selection offered by local retailers inadequate may now enjoy the convenience of having any wine they like shipped directly to their homes, as long as they're willing to travel across the country for the privilege.

[Thanks to Nicolas Martin for the tip.]

Where "is the constitutional grant of authority to ban mere possession of cocaine today?"

info@reason.com (Damon W. Root) — Fri, 15 Aug 2008 18:09:00 EDT

Does the Constitution allow jury nullification? Thomas R. Eddlem certainly thinks so. As the Cato Institute's Tim Lynch details in a superb post, Eddlem was booted off a jury for daring to question federal drug laws:

The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where "is the constitutional grant of authority to ban mere possession of cocaine today?"

[...]

[District Court Judge William G.] Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn't going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the "problem juror." Once discovered, that juror was replaced with an alternate-over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

So who's right, Judge Young or citizen Eddlem? Here's legal scholar Randy Barnett:

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed.

For more on Eddlem and his jury nullification, check out this Boston Globe story. And don't miss the accompanying photo, complete with a copy of Judge Andrew Napolitano's A Nation of Sheep on Eddlem's table.

Is the Second Amendment Limited to Citizens?

jsullum@reason.com (Jacob Sullum) — Fri, 15 Aug 2008 13:22:00 EDT

This week a federal magistrate judge in Florida concluded that illegal aliens do not have a right to arms under the Second Amendment. "That common law right was held only by citizens and those who swore allegiance to the Government," U.S. Magistrate Judge Edwin Torres writes (PDF). "It did not include everyone present on American soil." In a 1990 decision, Torres notes, the Supreme Court said "'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Likewise, in this year's decision overturning the Washington, D.C., gun ban, the Court said "the people" in the Second Amendment "unambiguously refers to all members of the political community." Since illegal aliens do not qualify as members of the political community, Torres concluded, they are not covered by the Second Amendment.

Eugene Volokh agrees with Torres' conclusion but wonders whether his reasoning also would exclude legal U.S. residents from the Second Amendment's protection. He notes that "federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa," while "some state laws go further and ban all possession by noncitizens, including by permanent residents." So does Guam, a federal domain whose law "could be challenged even without reaching the question whether the Second Amendment is incorporated against the states." Over the years, the Supreme Court has extended to legal residents almost all of the constitutional guarantees that citizens enjoy, including freedom of speech and religion, security against unreasonable searches and seizures, due process and other trial-related rights, equal protection, and just compensation for takings. If "the people" in the First and Fourth amendments includes noncitizens, is there a compelling reason to think "the people" in the Second Amendment does not?

Why Don't We Protect the Privacy of Jurors?

schapman@tribune.com (Steve Chapman) — Thu, 14 Aug 2008 07:00:00 EDT

Under the best of circumstances, jury duty is about as enjoyable as being trapped in an elevator with a Ronco salesman. You're yanked away from your job or domestic responsibilities, stuck in an airless bunker with lawyers who flunked out of charm school, forced to work with strangers and paid only a minimal stipend—and all this can go on for weeks or even months.

But one 79-year-old New York divorcee found out what jury duty is like when the circumstances are not the best. Ruth Jordan, a member of the jury in the trial of Tyco International executives Dennis Kozlowski and Mark Swartz, has not only had her name and photo spread around the world, but was ridiculed in New York newspapers for allegedly being stingy, snobbish, and paranoid.

The abuse occurred because she supposedly made a sympathetic signal to defense lawyers. That outrage prompted The Wall Street Journal's website and the New York Post to publish her name while the trial was underway, which is almost unheard of.

With that information out, Jordan soon got a hostile anonymous phone call and a letter she regarded as disturbing. So Judge Michael Obus declared a mistrial, citing "the notoriety that was brought to bear on one particular juror, whose name and background have been widely publicized in the media."

By that time, it was irrelevant that the abuse was unwarranted. The judge made a point of declaring that she did nothing wrong. His ire was directed at the press for disclosing her identity.

But if it's important to protect the privacy of jurors, why should their names be available in the first place? Obus could have sealed them at the outset. And a strong case can be made that jurors are entitled to anonymity as a matter of course.

After all, we impose severe burdens on them. Since the abolition of the draft, jury duty is about the only legal form of involuntary servitude. Jurors often undergo interrogation about embarrassing personal matters, sometimes endure stomach-turning exhibits, and may be separated from their family and friends for long periods of time.

These inconveniences may not be avoidable. But loss of privacy and fear of retribution are. A friend of mine who was in the pool for a murder case found several fierce-looking associates of the defendant, apparently gang members, staring ominously at potential jurors—whose names were a matter of public record. One federal appeals court has said, "As judges, we are aware that, even in routine criminal cases, (jurors) are often uncomfortable with disclosure of their names and addresses to a defendant."

That's not the only worry. A study by Paula Hannaford, a lawyer with the National Center for State Courts, notes that the data collected for jury service "links many aspects of a person's life—home, family, work, citizenship and residency status, criminal history and finances—in a single, convenient record, and no effort is made to place restrictions on public access to information that is not ordinarily in the public domain."

Some judges have tried keeping names confidential and identifying jurors only by number. But defense lawyers often object, arguing that the secrecy may cause jurors to see the defendant as dangerous. Any taint caused by the selective use of anonymity, however, would vanish if it were the rule.

The news media insist names are important to make juries accountable to the public. But we don't let cameras into jury deliberations, and we don't publish transcripts of those discussions, because we know the value of confidentiality. Jurors are not government officials who must answer to the citizenry for their decisions. If some of them fall short, it's the job of the judge, not the news media or the public, to take remedial action.

As for the value of interviewing jurors afterward, as various news organizations did in the Tyco case, fear not: Some jurors will always be eager to rush to the nearest TV camera. But those who prefer to avoid uninformed second-guessing and catty put-downs should be allowed to go in peace.

Granting jurors anonymity in all criminal trials would make service more attractive and improve the quality of deliberations. Since other demographic information about jurors would remain available, the public would lose no crucial knowledge—and it would gain a better system of justice.

Jury service is a civic responsibility as important as voting. If we let citizens vote in elections with the protection of secrecy, why do jurors deserve less?

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Editor's Note: Steve Chapman is currently on vacation. This column was originally published in April 2004.

'The Citizens Deserve Peace'—but Not Freedom

jsullum@reason.com (Jacob Sullum) — Wed, 13 Aug 2008 13:13:00 EDT

On Tuesday the city council of Helena—West Helena, Arkansas, unanimously gave police the authority to impose a 24-hour curfew on any part of the city. A.P. reports that a 24-hour curfew already has been in effect in one especially crime-ridden neighborhood of the town for a week. (Doesn't that make it a 168-hour curfew?) So far the curfew has resulted in 32 arrests, mostly for misdemeanors. Although police, who are armed with "military-style M-16 or M-4 rifles, some equipped with laser sights" as well as "short-barrel shotguns," could arrest people simply for leaving their homes, they say they have refrained from doing so:

[Police Chief Fred] Fielder said officers had not arrested anyone for violating the curfew, only questioned people about why they were outside. Those without good answers or acting nervously get additional attention, Fielder said.

The aptly nicknamed Councilman Eugene "Red" Johnson averred that "at 3 o'clock in the morning, nobody has any business being on the street, except the law." He evidently did not address the propriety of being on the street during the other 23 hours of the day. More generally, city officials dismissed constitutional objections raised by the American Civil Liberties Union:

"If somebody wants to sue us, they have an option to sue, but I'm fairly certain that a judge will see it the way the way the citizens see it here," Mayor James Valley said. "The citizens deserve peace, [believe] that some infringement on constitutional rights is OK and we have not violated anything as far as the Constitution."

I confess the distinction between infringing on constitutional rights and violating the Constitution escapes me. But according to A.P., "The council said those living in the city want the random shootings and drug-fueled violence to stop, no matter what the cost." They argued, in effect, that civil liberties are a luxury that people in poor, violence-plagued neighborhoods cannot afford, "at one point questioning the Little Rock-based attorney [from the ACLU] if she'd live in a neighborhood they described as under siege by wild gunfire and gangs."

Yet the violence is mostly related to the illegal drug trade. So the government creates a black market that disproportionately hurts poor people, enforces its drug laws in a way that disproportionately hurts poor people, and responds to the resulting violence and disorder with police tactics that disproportionately hurt poor people. When civil libertarians object, they are dismissed as privileged pointy-heads who do not understand the problems of poor people.

[via The Freedom Files]

Fair-Weather Federalists

jsullum@reason.com (Jacob Sullum) — Wed, 13 Aug 2008 13:00:00 EDT

When Owen Beck was 17, doctors amputated his right leg to stop the spread of bone cancer. His parents, desperate to find a drug that would relieve their son's excruciating phantom limb pain, brought him to Charlie Lynch's medical marijuana dispensary in Morro Bay, California, carrying a recommendation from a Stanford University oncologist. The marijuana not only eased the pain but also alleviated the nausea caused by chemotherapy.

Called to testify as a character witness in Lynch's federal marijuana trial, Beck did not get far. When he mentioned his cancer, U.S. District Judge George Wu cut him off and sent him packing. Wu decreed there would be no talk of the symptoms marijuana relieves, no references to California's recognition of marijuana as a medicine, no mention even of the phrase medical marijuana in front of the jury.

In short, there would be no explanation of how Lynch came to operate what prosecutors called a "marijuana store" in downtown Morro Bay for a year, openly serving more than 2,000 customers. Under federal law, which forbids marijuana use for any purpose, all that was irrelevant. So it's hardly surprising that Lynch was convicted last week of five marijuana-related offenses that carry penalties of five to 85 years in prison.

Nor is it surprising that so many self-described conservatives, including Republican presidential candidate John McCain, support the prosecution of people like Charlie Lynch, abandoning their avowed federalist principles because of blind hostility toward a plant they associate with draft-dodging, flag-burning hippies. It's not surprising, but it's shameful.

The U.S. Drug Enforcement Administration has raided more than 60 medical marijuana dispensaries in the last two years. Because the deck is stacked against them, dispensary operators facing federal drug charges typically plead guilty.

Lynch instead gambled on a defense known as entrapment by estoppel, which occurs when someone is arrested for actions the government assured him were legal. Before he opened Central Coast Compassionate Caregivers in 2006, Lynch called the DEA to ask about his legal exposure. He says an agent told him he should consult with state and local authorities, which he took to mean he could avoid trouble as long as he complied with state and local law.

It's not hard to see why Lynch believed he was operating a legitimate business. He had the blessing of the Morro Bay Chamber of Commerce and the city council; local officials, including Morro Bay's mayor, posed for pictures at the dispensary's opening; and neither his neighbors nor the city police objected.

At Lynch's trial the DEA denied giving him any sort of green light, or even a yellow one. But the response he says he got from the agency is the response he should have gotten, because under the U.S. Constitution the medical use of marijuana is a local matter.

At one time John McCain seemed to acknowledge as much. In April 2007 he said, "I will let states decide that issue." But he quickly abandoned that position, and this year he said he'd continue the DEA's medical marijuana raids, declaring, "It is a national issue and not a [state] issue." By contrast, McCain's Democratic opponent, Barack Obama, has promised to stop the raids.

McCain's medical marijuana position contradicts his professed allegiance to federalism. "The federal government was intended to have limited scope," he says on his website, vowing to appoint judges who "respect the proper role of local and state governments."

That commitment is inconsistent with reading Congress' power to regulate interstate commerce broadly enough to cover homegrown medical marijuana, as the Supreme Court did in 2005. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas noted in his dissent, "it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

By supporting the Bush administration's medical marijuana policy, McCain is renouncing such concerns. Worse, his promise to flout the Constitution probably will enhance his appeal among conservatives.

Monument to Aesthetic Imperialism

jsullum@reason.com (Jacob Sullum) — Mon, 11 Aug 2008 12:06:00 EDT

The Third Church of Christ, Scientist, at the intersection of 16th and I streets in Washington, D.C. (a few blocks north of the White House), is a hard building to like, as even its admirers admit. Designed by Araldo A. Cossutta, a former associate of I.M. Pei, the 37-year-old structure exemplifies brutalism, which Christy MacLear of the National Trust for Historic Preservation concedes is a "challenging style to defend largely because its foundation is grounded in philosophy, as opposed to aesthetics; people simply don't think it is good-looking." You can judge that for yourself. But among the people who don't much care for the church are its owners, who want to replace it with something friendlier. "This brutalist, unwelcoming, bunkerlike building is not a proper representation of our practice or our theology," says church spokesman J. Darrow Kirkpatrick.

Too bad, says Washington's Historic Preservation Review Board, which in December declared the building a landmark. Never mind the persistent mildew, the expense of heating the building and changing light bulbs in fixtures that can be reached only by scaffolding, the cavernous atmosphere of the 400-seat sanctuary, or the sheer ugliness of the exterior. The board has deemed the building historically significant, citing its "amazingly high integrity (in all respects: location, design, setting, materials, workmanship, feeling and association), down to the original carpeting and seat upholstery in the church auditorium." This sort of architectural diktat is in some respects worse than using eminent domain to transfer land from its owners to politically favored developers, since in this case there's no compensation, just or otherwise. Why collect donations from fans of brutalism, or even allocate taxpayers' money, to buy and preserve this "rare Modernist church" when you can force the current owners to maintain it as a monument to aesthetic imperialism?

Last week, with help from the Becket Fund for Religious Liberty, the church challenged the historic landmark designation in federal court, arguing that it violates the First Amendment and the Religious Land Use and Institutionalized Persons Act. Since the Supreme Court has said that "neutral laws of general applicability" do not violate the Constitution's guarantee of religious freedom even if they ban a religion's central rite, the First Amendment argument probably won't succeed. The statutory argument looks more promising: The law cited by the Christian Scientists says a land use regulation that imposes "a substantial burden" on religious freedom is permissible only if it's the "least restrictive means" of serving "a compelling governmental interest." Much hinges on whether preserving the church building counts as a compelling interest; the plaintiffs should hope the case is not heard by a brutalism booster.

A better approach would be to recognize the restrictions that accompany historic landmark designations as a kind of "taking" for "public use" that requires "just compensation" under the Fifth Amendment. If taxpayers were compelled to pay for the maintenance of modernist monstrosities, they might start to object, and this safeguard would protect property owners regardless of their religious beliefs. In 1978 the Supreme Court rejected the argument that the designation of New York City's Grand Central Terminal as a historic landmark qualified as a taking, but that was before a string of cases in the 1980s and '90s establishing that land use regulations, if severe enough, can amount to a taking. The Christian Scientists might not fare very well under those precedents, since they still have use of their church. Yet it's clear the government has taken something of considerable value from them, allegedly for the benefit of the general public. Even assuming that historic landmark laws are justified in principle, why should the church alone bear the burden of its building's forced preservation?

Brian Doherty noted the dispute over the church's future back in December.

Does a Fair Outcome for Hamdan Mean the Process Is Fair?

jsullum@reason.com (Jacob Sullum) — Fri, 08 Aug 2008 12:16:00 EDT

"What ultimately happened, in spite of the system, was justice," says Charles D. Swift, one of Salim Hamdan's defense attorneys. The officers who heard Hamdan's case certainly deserve credit for fairly weighing the evidence against him, rejecting unsubstantiated conspiracy charges, and selecting an appropriate sentence, five and a half years, for the crime he clearly did commit: providing material support for terrorism by serving as Osama bin Laden's driver. The military judge who presided over the trial likewise did the right thing by giving Hamdan credit for the 61 months he has served at Guantanamo since he was charged. The upshot is that Hamdan could, in theory, be released at the end of the year, assuming the Bush administration does not insist on keeping him locked up until the "cessation of hostilities" in the War on Terror—i.e., for the rest of his life. Even if the current administration does not release Hamdan, the next one might. In short, the outcome of this trial seems just, something the Bush administration's critics should be willing to acknowledge.

At the same time, a similar result could have been reached a long time ago in a civilian trial or a standard court martial, perhaps with some adjustments to prevent the release of classified information. Was there a compelling reason to invent a whole new system, let alone to do so initially without seeking authority from Congress? The result has been years of legal wrangling, interbranch acrimony, and international criticism. Now, nearly seven years after President Bush unilaterally created military tribunals that the Supreme Court ultimately deemed illegal, we have the very first verdict, in a case involving a low-ranking Al Qaeda employee who never helped plan or execute a terrorist attack. While prosecutors requested a sentence of 20 years to life, the jury settled instead on 66 months. Wake Forest law professor Bobby Chesney reports that the median sentence for people convicted of material support in civilian court is nearly twice as long, which suggests the jury considered Hamdan's crime relatively minor.

Although Hamdan's trial proved fairer than many of the president's critics (including me) expected, there are still some troubling aspects to the process (leaving aside the possibility of indefinite confinement even after the defendant has completed his sentence). The admissibility of evidence obtained through coercive interrogation probably did not make much difference in Hamdan's case, since he readily admitted working for Bin Laden. But it's not hard to imagine situations where information obtained through torture or something close to it would wrongly implicate a defendant or exaggerate his crimes. Likewise, Hamdan's defense was not stymied by secret evidence that his attorneys did not have an adequate opportunity to challenge, but that's a problem future defendants could face.

An issue that did play a central role in Hamdan's trial is whether his prosecution violated the Constitution's prohibition of ex post facto laws. Providing material support for terrorism has been a federal crime since 1993, although until 2001 it consisted of providing training, money, weapons, or other tangible goods to terrorist groups. The PATRIOT Act, passed in late October 2001, broadened the definition of the crime to include providing "expert advice or assistance." In 2004 Congress again broadened the meaning of "material assistance," defining it to include "any property, tangible or intangible, or service." (It also made receiving training a violation, making it easier to prosecute would-be terrorists who visit Al Qaeda camps.) So driving Osama bin Laden around was definitely a federal crime after 2004 and arguably one after October 2001. Hamdan was captured in November 2001, so he committed the crime for at least a month or so, assuming that driving constitutes "expert advice or assistance." But Hamdan was not tried in civilian court, and Congress did not make material support for terrorism a crime triable by military commissions until 2006. Prosecutors argued that it nevertheless was internationally recognized as a war crime, but that is by no means clear.

Although this issue may seem like a technicality, what's at stake is a basic principle of justice: To be convicted of a crime, people must have advance notice that they are breaking the law. The point is not that Hamdan did not realize being Bin Laden's chauffeur was legally risky, or that he was closely following terrorism-related legislation in the U.S. But once the government has the power to retroactively define crimes, it won't be just Al Qaeda employees who are in jeopardy.

Now Playing at Reason.tv: Why California Medical Marijuana Dispensary Owner Charlie Lynch Was Found Guilty in Federal Court of Selling Drugs

Fri, 08 Aug 2008 09:29:00 EDT

reason has been reporting on the trial of Charles Lynch, who operated a medical marijuana dispensary in California that was fully legal under state law.

Two days ago, Lynch was found guilty in federal court on five counts of distributing drugs and, if given the maximum sentence, faces an effective life sentence. Read reason's take here.

In this latest reason.tv video, we talk to Lynch's lawyers and the forewoman of the jury to find out precisely how Lynch got convicted and what happens next. It's a disturbing, provocative video that should make even the hardiest drug warrior wonder just what the hell we're doing locking up businessmen who play by the rules and give aid and comfort to sick people. That Lynch's conviction was virtually guaranteed under federal law simply underscores how immoral those laws are.

Previous Lynch trial video updates can be found here and here. reason.tv's documentary short on the case, Raiding California, can be found here.

Hamdan Acquitted—and Convicted

jsullum@reason.com (Jacob Sullum) — Wed, 06 Aug 2008 14:27:00 EDT

Today a military tribunal at Guantanamo Bay acquitted Salim Ahmed Hamdan, Osama bin Laden's former driver, of participating in conspiracies to carry out terrorist attacks and kill Americans in Afghanistan. At the same time, the panel of six officers convicted Hamdan of providing material support for terrorism.

That split decision seems about right to me. There was no evidence that Hamdan participated in planning or carrying out the 9/11 massacres or other terrorist attacks, or even that he knew the details in advance, and the other conspiracy allegation was based on little more than the fact that there were two shoulder-fired missiles in the car he was driving when he was captured. But Hamdan admitted that he knowingly worked for a terrorist organization, so there was never any real question that he was guilty of providing material support to Al Qaeda.

The real problem with the charge on which he was convicted is that providing material support for terrorism was not an offense triable by military courts at the time Hamdan committed it, an apparent violation of the Constitution's ban on ex post facto laws (assuming that clause applies at Guantanamo). Then, too, the trial in which he was convicted included secret evidence, hearsay evidence, and evidence obtained through coercive interrogations during which Hamdan had no right to remain silent. His lawyers will raise these and other issues when they appeal the conviction, first to a military panel and then to the federal courts. Perhaps the most glaring anomaly, however, is that Hamdan would have received a life sentence regardless of the trial's outcome. Even if he had been acquitted of all charges, the Bush administration claims the authority to keep him and other "enemy combatants" locked up until the cessation of hostilities in the War on Terror—i.e., forever, for all intents and purposes.

I don't have such sympathy for Hamdan, who deserves to be punished for the role he played in Al Qaeda. But there is a question of proportion here. As Hamdan's attorneys noted, even Hitler's driver was not tried as a war criminal, and prisoners who played more prominent roles in Al Qaeda already have been released. Hamdan has been imprisoned for nearly seven years. Had he been tried and convicted by a civilian court, he probably would be released in a few more years. As it is, it looks like he's a lifer, no matter how his appeals go.

File Keepers

jsullum@reason.com (Jacob Sullum) — Wed, 06 Aug 2008 07:00:00 EDT

If someone develops a practical mind-reading device, you can expect the Department of Homeland Security to argue that skulls are merely another "closed container" that officers guarding the border may search at will. After all, government agents have long been allowed to read documents in briefcases carried by Americans returning from abroad. Why should the medium in which information is stored make a constitutional difference?

That argument is only slightly more far-fetched than the one DHS uses to justify its policy regarding border searches of laptop computers. Given the nature and quantity of the data they contain, portable computers are in many ways extensions of our brains. Yet DHS is treating them as if they were no different from purses or fruitcake tins.

Recently publicized DHS guidelines confirm that the department for years has been examining the contents of computers at airports and other points of entry "absent individualized suspicion." The guidelines say officers "may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search," which "may take place on-site or at an off-site location."

In practice, this means a customs agent can seize your computer for any reason or no reason at all. He may rummage through your files while you stand there, hoping nothing embarrassing pops up, or he may take the computer to a back room. It may disappear for weeks or months as its contents are copied, analyzed, and shared with various federal agencies trying to determine whether you've broken any laws.

DHS won't say how common these searches are. But when the Association of Corporate Travel Executives surveyed its members in February, 7 percent of the respondents said their laptops or other electronic devices had been seized.

As anyone whose computer has been stolen or irreparably damaged can testify, it's a traumatic experience to suddenly lose this crucial repository of your personal and professional life, which may include confidential work in progress; sensitive financial, medical, and educational records; and years of photos, music, notes, journal entries, and correspondence. Knowing that government agents are perusing and passing around this information makes the experience even less pleasant, especially when you realize that your hard drive also contains traces of files you've deleted and websites you've visited.

But according to DHS, all that's necessary to make this enormously inconvenient and invasive search "reasonable" under the Fourth Amendment is your decision to take your computer with you to another country. In April the U.S. Court of Appeals for the 9th Circuit agreed, reversing a lower court decision that said such searches require "reasonable suspicion," a belief based on "specific and articulable facts," along with "rational inferences" drawn from them.

This standard, substantially less demanding than the "probable cause" necessary for a warrant, is not very hard to satisfy. In fact, DHS Secretary Michael Chertoff claims the department already follows it. "As a practical matter, travelers only go to secondary [examination] when there is some level of suspicion," he writes in a July 16 USA Today op-ed piece. But he warns that "legislation locking in a particular standard would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."

It's worth emphasizing that Chertoff is talking about searches for incriminating data, not searches for bombs or other imminent threats. He says computer searches have turned up "violent jihadist material" as well as "scores of instances of child pornography." He does not say how many, if any, terrorist plots have been foiled. As electronic privacy expert Peter Swire points out, even a "moderately well-informed" terrorist can easily avoid detection by emailing encrypted data to himself or using software that hides files.

Judging from Chertoff's statements and the legal record, the government is using fear of terrorism to justify extraordinarily invasive, suspicionless searches in the service of ordinary police work. In these circumstances, the real danger is the absence of second-guessing.

California Appeals Court Upholds Medical Marijuana Cards

jsullum@reason.com (Jacob Sullum) — Fri, 01 Aug 2008 12:41:00 EDT

Yesterday a California appeals court rejected a challenge by San Diego and San Bernardino counties to a state law requiring them to issue ID cards for medical marijuana patients. The counties, which have been resisting the state policy allowing medical use of cannabis for years, argued that the Medical Marijuana Program Act of 2003, which established the current ID card system, is pre-empted by the federal Controlled Substances Act (CSA). The court disagreed:

We conclude the identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA. The purpose of the CSA is to combat recreational drug use, not to regulate a state's medical practices....
Although California's decision to enact statutory exemptions from state criminal prosecution for such persons arguably undermines the goals of or is inconsistent with the CSA—a question we do not decide here—any alleged "obstacle" to the federal goals is presented by those California statutes that create the exemptions, not by the statutes providing a system for rapidly identifying exempt individuals. The identification card statutes impose no significant added obstacle to the purposes of the CSA not otherwise inherent in the provisions of the exemptions that Counties do not have standing to challenge, and we therefore conclude the limited provisions of the MMP that Counties may challenge are not preempted by principles of obstacle preemption.

Note that the decision does not address the question of whether the CSA pre-empts the laws shielding medical marijuana users from state prosecution. In the 2005 decision Gonzales v. Raich, the U.S. Supreme Court held that the power to regulate interstate commerce permits federal prosecution of patients who possess marijuana for medical use, even in states that permit such use. But it did not say the CSA requires states to prosecute them. And the following year, in Gonzales v. Oregon, it ruled that the CSA does not bar states from allowing doctors to prescribe barbiturates for patients with terminal illnesses who want to kill themselves.

Identifying statutory exceptions that permit states to experiment with different drug policies is a poor substitute for the original constitutional design, under which Congress has no authority to override such experiments. But I suppose it's better than nothing. This way, if Congress wants to obliterate the distinction between local and national matters, dictating policy choices that the Constitution reserves to the states, it has to do so explicitly.

The appeals court decision is here (PDF).

[Thanks to Dan Berger at the ACLU Drug Law Reform Project for the tip.]

Chicago Suburbs Repeal Their Handgun Bans

jsullum@reason.com (Jacob Sullum) — Thu, 31 Jul 2008 15:33:00 EDT

I just noticed this: Last week two Chicago suburbs, Morton Grove and Wilmette, repealed their handgun bans in response to D.C. v. Heller, the Supreme Court decision that overturned the Washington, D.C., handgun ban. After Heller, Second Amendment advocates sued Morton Grove, along with Chicago and two other suburbs, Evanston and Oak Park, over their handgun bans. Wilmette was not sued, apparently because it stopped enforcing its ban following the ruling.

Since the District of Columbia (which banned handguns in 1976) is a federal domain, Morton Grove was technically the first municipality in the country to do so. Its 1981 law was upheld in 1982 by the U.S. Court of Appeals for the 7th Circuit, which ruled that the Second Amendment does not apply to state and local governments. Even if it did, the 7th Circuit said, "the right to keep and bear arms exists only as it relates to protecting the public security." The court also concluded that Morton Grove's handgun ban did not violate Article I, Section 22 of the Illinois Constitution, which says, "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."

Wilmette, which banned handguns in 1989, was featured in Robert VerBruggen's 2005 reason story about Hale DeMar, a Wilmette resident who faced a gun charge after defending himself against a burglar. I noted the challenge to Chicago's handgun ban in a post-Heller column.

Lessons from Professor Barack Obama

info@reason.com (Damon W. Root) — Wed, 30 Jul 2008 17:11:00 EDT

The New York Times has a very interesting article on Barack Obama's teaching career at the University of Chicago Law School. There's a lot to chew on, though this quote from libertarian legal scholar Richard Epstein certainly jumped out:

Because he never fully engaged, Mr. Obama "doesn't have the slightest sense of where folks like me are coming from," Mr. Epstein said. "He was a successful teacher and an absentee tenant on the other issues."

This runs counter to the "Obamacon" narrative, where disgruntled libertarians and conservatives not only prefer Obama to John McCain, they explicitly see him as sharing some of their own concerns (and values). Epstein's quote suggests that Obama's right-leaning fans might be in for something of a letdown this fall.

But Obama's marks from faculty liberals weren't that much higher:

In his voting rights course, Mr. Obama taught Lani Guinier's proposals for structuring elections differently to increase minority representation. Opponents attacked those suggestions when Ms. Guinier was nominated as assistant attorney general for civil rights in 1993, costing her the post.

"I think he thought they were good and worth trying," said David Franklin, who now teaches law at DePaul University in Chicago.

But whether out of professorial reserve or budding political caution, Mr. Obama would not say so directly. "He surfaced all the competing points of view on Guinier's proposals with total neutrality and equanimity," Mr. Franklin said. "He just let the class debate the merits of them back and forth."

Whole thing here.

A Closer Look at Heller v. D.C. II

jsullum@reason.com (Jacob Sullum) — Tue, 29 Jul 2008 16:21:00 EDT

As Dave Weigel noted yesterday, Dick Heller has filed a complaint in federal court that accuses the District of Columbia of failing to comply with the Supreme Court decision overturning D.C.'s handgun ban and firearm storage requirements. The complaint (PDF) focuses on two aspects of D.C.'s revised gun law that I discussed in my column last week: the ban on semiautomatic handguns and the requirement that any firearm in the home be kept unloaded and locked except "while it is being used to protect against a reasonably perceived threat of immediate harm to a person."

The former restriction, note Heller's attorneys, Stephen Halbrook and Richard Gardiner, is hard to reconcile with the Supreme Court's conclusion that banning the guns most commonly used for self-defense violates the Second Amendment. "The District's ban on semiautomatic handguns," they write, "amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for the lawful purpose of self-defense in the home." They are not asking the U.S. District Court to overturn D.C.'s absurdly broad "machine gun" ban, which covers semiautomatic guns if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. Instead Halbrook and Gardiner want the court to reject the District's interpretation of the law, according to which any gun that can accept a magazine holding more than 12 rounds is forbidden, even if the owner does not possess such a magazine. It's this interpretation that prevents Heller from registering his seven-shot .45-caliber pistol and co-plaintiff Absalom Jordan from registering his 10-shot .22-caliber pistol.

The District's position seems to be that banning all handguns except revolvers fits with the Supreme Court's implicit approval of bans on "dangerous and unusual weapons." I've noted the circular logic of that exception, whereby banned weapons (such as actual machine guns) remain banned because the ban has made them unusual. The "dangerous" part is puzzling too, since all weapons are dangerous; that's what makes them weapons. But whatever the phrase means, it clearly does not apply to semiautomatic handguns, which are not "unusual" in this country by any stretch of the imagination.

Regarding the storage rule, Halbrook and Gardiner note that the new law, like the original one, includes a general exception for guns carried by law enforcement personnel and guns kept in places of business. "Such provision acknowledges the need to keep a firearm in useable condition for defense of self and others against an unlawful, sudden, and deadly attack," they note, which highlights the unreasonableness of demanding that guns in the home be kept unloaded and locked until the very moment they are being used to fend off an attack. They point out that the law even forbids D.C. residents to unlock their guns "for innocuous purposes such as cleaning."

Halbrook and Gardiner also object to the District's cumbersome registration process, especially the unlimited authority given to the chief of police to set the fee for ballistic testing. They argue that "predicating the right lawfully to possess a pistol as guaranteed by the Second Amendment on the payment of any fee, and moreso an undefined fee with no limit according to the arbitrary will of the Chief, infringes on the right of the people, including plaintiffs herein, to keep and bear arms."

Here is the Washington Post story about the lawsuit. Here (PDF) is a copy of the complaint.

Correction: As Gary Imhoff noted, my original post confused one of the plaintiffs with one of the lawyers. I've fixed the names.

Did the Supreme Court Approve the Order to Lock and Unload?

jsullum@reason.com (Jacob Sullum) — Wed, 23 Jul 2008 13:12:00 EDT

While researching my column about the District of Columbia's new gun law, I came across a tendentious assertion by Peter Nickles, D.C.'s acting attorney general, that I didn't have space to address. Defending the District's requirement that guns be kept both locked and unloaded until the very moment they're needed "to protect against a reasonably perceived threat of immediate harm to a person," Nickles told Washington Post columnist Marc Fisher:

It's clear the Supreme Court didn't intend for you to have a loaded gun around the house. I don't think the court thought this was going to become a Wild West scene.

Leaving aside Nickles' assumption that keeping a loaded gun in the house inexorably leads to "a Wild West scene" (a scenario that has not materialized even in juridictions where people are permitted to walk around in public with loaded guns), where, exactly, did the Supreme Court make it clear that keeping a loaded gun is beyond the protection of the Second Amendment? The majority opinion in D.C. v. Heller acknowledges that some forms of gun control are consistent with the Second Amendment and implies that they include "laws regulating the storage of firearms to prevent accidents." But that does not mean any law with that ostensible aim is valid; in fact, the Court found that D.C.'s law "regulating the storage of firearms" was unconstitutional because it effectively prevented people from using guns for self-defense. It did not explicitly address the constitutionality of a "safe storage" rule like the one the District has now adopted, which impedes self-defense and is more restrictive than necessary to prevent accidents (a goal that could be served by requiring, for example, that loaded firearms be kept in gun safes with their safeties on). But it's hard to see how the new rule can pass muster, since it substantially impinges on a gun owner's ability to defend himself while doing nothing to advance a legitimate government interest that could not be accomplished through less restrictive means.

Excuse Me While I Get My Gun

jsullum@reason.com (Jacob Sullum) — Wed, 23 Jul 2008 07:00:00 EDT

Last month the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. Last week the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.

D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible.

The new law "clarifies that no carry license is required inside the home" to move a gun from one room to another. It also "clarifies" the District's firearm storage requirements, saying a gun may be unlocked and loaded "while it is being used to protect against a reasonably perceived threat of immediate harm to a person" in the home.

Much hinges on what counts as a "reasonably perceived threat." If you're awakened in the middle of the night by a crash, may you carry a loaded gun with you as you investigate? Evidently not. The Washington Post reports that D.C.'s acting attorney general, Peter Nickles, "said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property." According to Nickles, if you see an armed criminal charging your home, or in the event of "an actual threat by somebody you believe is out to hurt you," you're allowed to get your gun, unlock it, and load it.

How long will that take? The new law lets people use a gun safe instead of a trigger lock, which, depending on the type of safe, could allow faster retrieval. But even a gun in a safe has to be kept unloaded, which will tend to slow down the owner's response to a "reasonably perceived threat," assuming he can figure out what that means.

The delay will be even longer because of the District's ridiculously broad ban on "machine guns." The Metropolitan Police Department says the ban covers all handguns except revolvers, which are more cumbersome to load than semiautomatics with detachable magazines.

Under D.C. law, "machine guns" include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. According to the District's interpretation, even a pistol that fires 12 or fewer rounds counts as a "machine gun" if it could accept a bigger magazine.

That's why Dick Heller, the man who successfully challenged D.C.'s handgun ban, was not allowed to register his seven-shot .45-caliber pistol, which in the District's view might as well be an Uzi. Instead he applied to register a .22-caliber revolver.

Speaking of registration, the District has established a burdensome 12-step process that involves multiple trips to gun dealers and government offices, fingerprinting, a written exam, and ballistic testing. How long does all this take? "Up to 14 days," according to one police department publication. "Approximately eight weeks," according to another. "There are circumstances where it could take months," says Police Chief Cathy Lanier.

Registration easily could turn out to be so onerous or capricious that it effectively denies D.C. residents the right to keep and bear arms. The District's revised firearm storage requirements are even more clearly unconstitutional, since they unreasonably interfere with the very function, self-defense in the home, that the Supreme Court said is protected by the Second Amendment. Likewise the arbitrary ban on semiautomatic handguns, the most commonly used self-defense weapons.

"I am pretty confident that the people of the District of Columbia want me to err in the direction of trying to restrict guns," D.C. Mayor Adrian Fenty told Washington Post columnist Marc Fisher. How about erring, just this once, in the direction of respecting civil liberties?

Defending Second Amendment Rights One Weapon at a Time

jsullum@reason.com (Jacob Sullum) — Mon, 21 Jul 2008 15:34:00 EDT

Alan Gura, Dick Heller's attorney, reports that the .22-caliber revolver his client began to register last week is the same weapon he tried to register in 2002 before suing the District of Columbia over its handgun ban. Therefore, Gura says, assuming Heller is allowed to register the revolver and keep it at home, "the city appears to be complying with the literal command of the [Supreme Court] judgment," which said "the District must permit [Heller] to register his handgun" as long as he is not "disqualified from the exercise of Second Amendment rights" (i.e., has no criminal or psychiatric record that bars him from owning a firearm). Gura adds:

That does not mean that the rest of the D.C. Code with respect to firearms is constitutional. Much of it is not. But the entire code was not directly at issue in our case. It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court's opinion, and make a serious effort to conform the former to the latter. If the political branches do not make the city's firearm laws constitutional, then as we've seen, the courts will do it for them.

In particular, the remaining storage requirements (which say even a gun locked in a safe must also be kept unloaded) and the "machine gun" ban (which the city used to stop Heller from registering a .45-caliber pistol with a seven-round magazine, arguing that the ban covers most semiautomatics) seem ripe for challenge. I'll have more on this in my column on Wednesday.

Heller (and Heller) Update

jsullum@reason.com (Jacob Sullum) — Fri, 18 Jul 2008 12:48:00 EDT

The Washington Post reports that Dick Heller, whose lawsuit resulted in the Supreme Court decision overturning the District of Columbia's gun ban, yesterday tried to register his .22-caliber revolver, which is one of the few handguns D.C. does not consider a "machine gun," but was turned away because he did not bring the weapon with him. Today he is trying again, having been assured that a) he has to bring the gun (kept for him by a friend in Maryland) to the police station in order to register it and b) he won't be arrested for carrying an unregistered gun if he does so.

According to D.C.'s reading of its "machine gun" ban, Heller's .45-caliber pistol has to remain in Maryland, since it, like any other handgun capable of accepting a ~~clip~~ magazine that holds more than 12 rounds, qualifies as a machine gun. Dane von Breichenruchardt, president of the Bill of Rights Foundation, calls this restriction "foolishness" and notes that D.C.'s leaders are "trying to find as many ways as they can to make the [registration] process as difficult and unattractive as they can." He predicts the city will find itself back in court soon. "Mayor Fenty promised us he would follow the letter and spirit of the law," he says. "He has done neither."

According to the Post, so far Heller is the only D.C. resident who has tried to register a handgun. One major barrier, in addition to the city's burdensome regulations and uncertainty about the risk of arrest, is the complete absence of legal gun dealers:

Because, under federal law, buyers can purchase handguns only in the states where they live, D.C. residents cannot legally purchase and take delivery of firearms until a licensed firearms dealer sets up shop in the District. Officials said that one dealer is in the process of reactivating his license and that others will probably obtain licenses eventually.
Eventually, it will be possible for D.C. residents to buy pistols in other states and have dealers in those states ship the guns to dealers in the District for delivery.

"Unfortunately, his jurisprudence is likely to be anything but conservative"

info@reason.com (Damon W. Root) — Fri, 18 Jul 2008 12:34:00 EDT

In yesterday's Wall Street Journal, Bob Barr took John McCain to task for his lousy judicial philosophy, arguing that conservatives shouldn't get too excited at the prospects of a McCain-appointed Supreme Court. For one, McCain doesn't think that the First Amendment protects all forms of political speech, which is only a problem, I suppose, if you hold the quaint opinion that the Constitution means what it says. Then there's McCain's sweeping view of presidential power:

In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

Interestingly, Barr suggests that cats and dogs won't start living together under an Obama Court:

Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won't much change the Court's balance.

Finally, after some throat clearing about the risk of "judge-made rights," Barr makes a great point about the judiciary's duty to check the other branches:

However, the Constitution sometimes requires decisions or action by judges—"judicial activism," if you will—to ensure the country's fundamental law is followed. Thus, for example, if government improperly restricts free speech—think the McCain-Feingold law's ban on issue ads—the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

Whole thing here.