Friday, May 17

Wine of the Week

The Ojai Vineyard Stolpman Vineyard (Santa Barbara County) Syrah 1996: The Ojai Vineyard specializes in Pinot Noir and Syrah; only 125 cases of Stolpman Vineyard Syrah were made. This is a fruit bomb, with a vibrant ruby-purple color, a jammy blackberry nose, and deep raspberry, blackberry, and blackcurrant flavors. There’s a swell of black pepper in the midpalate, and ripe tannins emerge on the finish, which starts off well but disappears precipitously after about fifteen seconds. Very enjoyable for the luscious fruit, but I don’t know how it will hold up over time. I have two more bottles, which I’m planning to drink over the next year or two.

Off to see the in-laws in Terre Haute for the weekend; I’ll be back on Monday.

Thursday, May 16

The popular and prolific Glenn Reynolds (Instapundit) hardly needs links from me, but he has a series of posts from last night and this morning that particularly deserve note. In the posts, he presents a number of views, including his own, about what the FBI knew and should have known about Al-Qaeda's plans before September 11. The essential point: while no one seems to have put all the pieces together, there was sufficient information that it was by no means unimaginable that Al-Qaeda terrorists would use a hijacked airliner to destroy a landmark building in America.

It's going to be a light day today because I suddenly find myself having to untangle apparent plagiarism in a student paper I'm grading. I'll have more to say on that subject later.

Wednesday, May 15

The Mets' Awful Infield

Rey Ordonez, a three-time Gold Glove winning shortstop for the Mets, just made his tenth error of the season in the bottom of the fifth in Los Angeles. That’s a terrible total, among the worst in the majors. And indeed, the entire Mets infield, including perennial Gold Glover Roberto Alomar at second and Edgardo Alfonzo readjusting to his old position at third, is having a miserable season. Is it possible that these three formerly outstanding fielders have simultaneously seen a significant erosion in their skills? Perhaps. But the biggest reason for the Met infield’s problems has to be the block of granite that is Mo Vaughn at first.

Ordonez’s error tonight was a case in point. He speared a soft line drive near second base, then threw to first in an attempt to double off the Dodger runner, Shawn Green. It was a tricky play: Ordonez rushed the throw, and it came to the bag in nearly the same line as the runner. But the biggest problem, as I saw it, was that Vaughn played the throw like a nine-year-old Little Leaguer afraid of the ball. It was a makeable play, and Vaughn didn’t even come close.

As time has passed, it’s become increasingly clear that the worst thing to happen to the Mets in the last three years--worse than losing Mike Hampton, worse than the decline and subsequent departure of Robin Ventura, worse even than Armando Benitez’s uncanny ability to blow saves in crucial games (although the bitter taste of first game of the 2000 World Series, which I attended at Yankee Stadium, still lingers)--was the departure of John Olerud following the 1999 season. Not only is Olerud a terrific, disciplined hitter, but his size, soft hands, and sense of the position at first base make everyone else in the infield better players. There was a column recently at ESPN.com (which, unfortunately, I can't find right now) that made the point clearly, by comparing the defensive performance of various players with Olerud as a teammate with their performance before his arrival or after his departure. The results were uniform: all made fewer errors when Olerud was their target at first.

In 1999, with Olerud in the lineup, the Mets' infield made the cover of Sports Illustrated, and the accompanying article labeled the collection of players one of the best infields ever. In 2000 and 2001, with the merely adequate Todd Zeile at first, the Mets' defensive performance fell back toward the middle of the pack. And this year, with a statue of Mo Vaughn at first, the Mets' infield is the worst in the majors despite the acquisition of Alomar. Add the fact that Vaughn runs more slowly than many people walk--he barely made it halfway down the line while grounding into a double play in the top of the fifth tonight--and it's increasingly clear that the Mets cannot and will not win with Mo Vaughn at first base.

A note on Asparagirl’s page--in which, prompted by a fundraising appeal, she castigates the Boy Scouts of America for their homophobia--got me thinking. In light of the pedophilia crisis in the Catholic Church, many of those who support the BSA’s ban on gay scoutmasters probably believe that their position has been shown to be justified. I think they’re misguided, though.

I have no problem with the BSA trying to protect their scouts from predatory pedophiles. It seems to me, though, that barring individuals who are openly gay isn't a particularly good way to achieve the desired goal. The vast majority of homosexual men do not pursue sexual relationships with minors, of course, but the rare one who did would be unlikely to proclaim his homosexuality, because any openly gay scoutmaster would have to know that he would be watched like a hawk for any sign of misconduct.

It also strikes me that, while the Boy Scouts may not be an appropriate place for open advocacy of homosexuality, having a scoutmaster who happens to be gay (without making a big issue of it) could teach impressionable scouts important lessons in tolerance.

Sigh. I really need to work on that article now.

Another Second Amendment note: Kurt Hemr has written an interesting note on the subject that I raised at the end of my post yesterday, namely, what weapons might be covered by the Second Amendment’s guarantee of the right to keep and bear “arms.” The Justice Department’s filings last week (at least as described in the press--I haven’t seen the briefs) obscure the issue by suggesting that current federal gun control statutes are constitutional. Those statutes represent three types of control: some restrict gun possession by certain categories of individuals (e.g., convicted felons), some regulate the process by which one acquires a firearm (e.g., the Brady Act’s requirement of background checks), and some restrict possession of particular kinds of weapons (e.g., the ban on certain types of assault weapons). If the Second Amendment right is an individual right, all three of these categories present possible constitutional issues. Although the first two of these are not likely to prove particularly problematic, the third is going to prove troublesome, as the amendment’s text gives very little indication of what weapons, precisely, are covered. A correspondent noted that in the early years of the Republic, some individuals owned armed ships, and that the federal government relied upon these privately owned ships during the War of 1812. Be that as it may, I have trouble imagining that society is now prepared to accept, for example, private ownership of F-16s. But, as Mr. Hemr suggests, the Second Amendment provides little or no guidance as to how a principled line is to be drawn. Here’s an excerpt; the whole piece is worth a look.

There are clearly political reasons for not answering the question of what exactly a Second Amendment individual right would protect. There are some individual-rights types who believe that a significant degree of gun control is just fine provided it falls short of confiscation; there are others who are looking forward to buying tanks. Not answering the question of who is right prevents division among individual-rights supporters.

However, the political moment might be near when it is in the interest of individual-rights supporters to begin confronting that question. One can argue with a straight face that intellectual integrity requires us to recognize the Second Amendment creates an individual right, and we should just see what happens as the amendment is construed in the courts. I for one would not be convinced. As Justice Goldberg remarked, "The Constitution is not a suicide pact." That's a cliché; it's a cliché because it's true. If the individual-rights movement can't define with any clarity the contours of an individual right protected by the Second Amendment, the rest of us are likely to conclude that the Second Amendment fails to create any individual right at all.

Tuesday, May 14

Prof. Volokh has thoughtfully responded to my post of earlier today (complete with a link, which means that perhaps someone outside my immediate family has now seen this page). And of course it turns out that, as a scholar of the Second Amendment, he has already considered and responded to the central point that I raised in my post. It turns out that, while the Second Amendment stands out among the Bill of Rights as the only amendment with a purpose clause, such clauses were not unusual in the assertions of rights found in the state constitutions. Ah, the joys and dangers of posting one's thoughts without doing research! Avoiding this is why writing law review articles takes so damn long.

In any event, I will have a look at Prof. Volokh's article. Without having read the article, I'm not completely satisfied by the assertion that the experience of the state courts interpreting the state constitutions "rebut[s] the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right." Perhaps that's because the examples he cites in the brief excerpt he uses to respond to me don't really seem to rest on essential purposes that have become obsolete over time (with the possible exception of the 1784 New Hampshire constitutional provision stating: "In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed.").

Less blogging tomorrow, because I really must focus on an article with an imminent deadline. Drat.

Interpreting the Second Amendment

First things first: I’m not that Jeff Cooper. About a year ago, I googled myself and discovered that I share my name with a veteran of World War II and the Korean War who is now editor-at-large at Guns & Ammo magazine and an established presence on the web. Some people I’ve encountered on the web have been bemused to see vaguely liberal ideas coming from someone with my name. I'm me--a law professor born more than a decade after the armistice in Korea.

Now that we have that out of the way: The Second Amendment is once again in the news, following the Justice Department’s change in position in briefs filed with the Supreme Court last week. Justice now takes the position that the Second Amendment acknowledges an individual right to possess firearms, not simply a collective right to maintain a militia. The announcement has provoked a fair amount of predictable wailing from gun control advocates. As for myself, I tend to agree that the right set forth in the Second Amendment is an individual right. I don’t think that’s the end of the story, however.

I’ll confess my limitations up front. I teach law, but not constitutional law, and I’m not familiar with the scholarly literature on the Second Amendment. I claim no special expertise, in other words, and no doubt much of what I say is unoriginal. I’m not completely without qualification here, though: I write and teach about interpretive theory (focusing on statutory, not constitutional, interpretation), and in a prior life I was a graduate student in American history focusing on the revolutionary and early national periods, with a particular interest in the ratification of the Constitution. And besides, one of the beauties of a weblog is the ability to opine without the full scholarly background that would be required of a law review submission. So here we go.

The Second Amendment states: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." (Don't be distracted by the oddly placed commas--modern conventions regarding punctuation and capitalization were not observed in the late eighteenth century, even by highly educated people.) It is frequently argued that the reference to "the people" refers to the populace collectively, rather than to individual persons.

I don't find that argument particularly persuasive. There are, to be sure, some places in the constitutional text in which "the people" appears to contemplate a collective meaning. The Tenth Amendment, for example, states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This reference certainly seems to contemplate collective action--it's hard to imagine seriously that it was meant to suggest individual persons exercising governmental authority. Other provisions in the Bill of Rights, however, clearly contemplate individual rights when they refer to "the people." As Eugene Volokh argues (and I won't complain about the lack of permalinks since I don't have them on my site yet either), the Fourth Amendment's assertion of "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," makes little sense if it does not offer protection to individuals. And the First Amendment's guarantee of freedom of assembly similarly requires that individuals be able to gather together with like-minded others; the right is ineffective if it does not have an individual component.

Yet there is something unique about the Second Amendment: it is the only one of the Bill of Rights with a purpose clause. The phrasing isn't as direct as it might be--it does not say, for example, "Because a well regulated militia is necessary to the security of a free State. . . ." But the language cannot be ignored, and the language clearly contemplates not an individual purpose, but a collective purpose: the maintenance of a militia. The American experience before and during the Revolution and the debates over the Constitution's ratification in 1787 and 1788 confirms the importance of this purpose. One of the Anti-Federalists' complaints about the Constitution was that it authorized a standing army; this, they argued, combined with the other strong powers granted to Congress in Article I and to the President in Article II, provided a means not only for the proposed federal government to enact oppressive laws but also to enforce federal power by arms. No, replied the Federalists, because if Congress attempts to impose a tyrannical regime, the states and the people collectively will resist, as they did during the Revolution. Although not resolved in the ratification debates, the dispute ultimately led to the adoption of the Second Amendment and explains the amendment's reference to the militia. So the right exists, but for a particular purpose.

A thought experiment: Suppose that the First Amendment's protection of freedom of speech contained a preamble and was written: "A free and open debate on issues of public concern, being necessary to the maintenance of a free State, Congress shall make no law abridging the freedom of speech." Would First Amendment law have developed differently? I think that it probably would. To be sure, even in the absence of a preamble, "core" political speech receives stronger protection than, say, pornography or commercial speech. But surely the inclusion of the preamble would strengthen the arguments in favor of stricter regulation of "peripheral" forms of speech, even though some protection would have to be given to provide breathing room for core political speech.

What does this suggest for the Second Amendment? In order for the collective purpose of the Second Amendment to be met, the right of "the people" individually to possess firearms must be preserved. But not for hunting. And, arguably, not for self-protection, although some protection of this purpose might fall within the breathing room the observance of which is necessary to meet the amendment's purpose. It would seem, however, that the Second Amendment leaves substantial room for governmental regulation of the individual possession of arms for purposes other than participation in a militia.

This leaves unanswered, of course, exactly what is meant by "arms." Arguably, for the right to have meaning in today's world, individuals would require more than simple firearms to fend off a standing army. After all, many Palestinians seem to possess firearms--we always see them on television firing into the air in celebration after a suicide bombing--and there were descriptions of fierce firefights during the recent Operation Defensive Shield, and yet the armed Palestinians don't seem to have been terribly effective against Israeli tanks. But serious Second Amendment scholars don't argue that the amendment guarantees the right to possess rocket launchers . . . do they?

(I realize that I have failed to consider the meaning of the words "well regulated." I've left open a number of other arguments as well, and I've failed to address some interesting arguments made by Professor Akhil Amar in his book, The Bill of Rights. Unfortunately, my scholarly work beckons--plus, there's a huge pile of final exams stacked in the corner, waiting to be graded.)

Monday, May 13

Why a weblog? There certainly are enough of them these days, a growing cacophony of voices so numerous that I might reasonably ask what I have to add. There are writers with more talent, more expertise, and apparently more time than I have. Despite my place on a middle rung of the academic ladder, I have few illusions left that I am particularly learned or insightful. And with so many weblogs out there, and scores of new ones appearing daily, the likelihood that any one new entry will gain a significant audience has to be considered low.

Ultimately, then, I am doing this for selfish reasons--two, principally. First, I need help with my academic writing. While my scholarly prose has generally garnered praise, the process that I endure in generating it is painful in the extreme. I have an unfortunate tendency to linger over the choice of every word. Not only am I slow, but working at such a deliberate pace encourages the mind to wander, which slows the process further, which causes my attention to waver even more, and so on, until I finally find myself wrapped in an agonized, immobile knot. And, of course, deep down I’m an animal--expose me to a painful stimulus, and I’ll shy away from it. As a result, increasingly my work simply doesn’t get done.

And that won’t do. Even though I amassed a strong enough publication record to avoid perishing in the tenuring process, I must continue to write, both because I have at least one more promotion to seek and because I have identified a series of questions that I am genuinely interested in exploring. Clearly, then, I need to try something different, Glenn Reynolds, a professor at the University of Tennessee College of Law who is better known in the web community as Instapundit, has said that he finds his weblog helps to get the writing juices flowing. And so I hope it will be for me: the weblog will serve as a warmup exercise leading into my academic work.

Second, I want to use this page to try to work through some of my thoughts about where I am as a person and where we are as a society. Like many people, I have felt myself changed in the wake of September 11, and like many people I am still in the process of figuring out what those changes mean. One result is that I have spent far too much time searching the web for the latest news, the latest opinion, to see what resonates with me. Yet ultimately, although I have absorbed a large amount of information and been exposed to the work of numerous interesting people (and some not so interesting), the process has proven unsatisfying. Steve Jobs, the CEO of Apple Computer, has frequently derided television as a “brain-off” activity, in contrast with computing. And yet web surfing itself can be quite a passive activity--I have often found myself in a daze before my monitor, amazed that somehow hours have passed since I launched my web browser. To be engaged requires participation, not just spectating.

I have tried more traditional forms of web-based interaction. In particular, I’m a longtime participant in a bulletin board community of Mac users. It’s a fascinating bunch--highly educated, well read, opinionated on a wide variety of subjects--and the exchanges on the board are lively and occasionally heated. Yet the bulletin board format sometimes makes it difficult to develop ideas--it encourages the witty riposte and the sharp retort--and the conversation tends to be dominated by a small number of very forceful personalities, of whom I am not one. To the extent that one of my purposes here is self-exploration (call it navel-gazing if you must), perhaps it’s best to engage in the process in a setting over which I can exercise control. That’s not to say that I intend to shy away from all interaction. Far from it. But at least here I will be able to proceed on my own terms.

(Why not just write a diary, either by hand or by computer? Partly because I love playing around on the web. And partly, I must admit, because of the secret thrill that someone might actually be watching. As a scholar, I’m used to writing for a very, very small audience, but at least there is an audience. And as a former performer, I love a stage.)

What then will I write about? We’ll see. The world is in transition, and I am too. In the meantime: the middle east and the increasingly unfocused war on terrorism (although I do not intend for this to become a full-fledged warblog, baseball, domestic politics, wine, the joys and trials of being a new father, whatever seems appropriate at the moment. For me, I have no doubt, it will be an interesting ride. If anyone is else is out there, you’re more than welcome to join me.