Eugene Volokh's Blog, page 191

[Josh Blackman] Some Legal Questions About Greenland, Puerto Rico, and Alberta

I realize many of the things that Trump says have no chance of becoming reality. But it is foolish to ignore him. I have a few legal questions about the logistics for some of Trump's territorial aspirations.

First, let's talk about Greenland. One of the primary reasons to acquire Greenland would be for its natural resources--in particular, the rare earth metals. I don't pretend to know the first thing about how to extract those resources from the ground. But I do know that federal environmental would create significant obstacles to obtaining those resources. Moreover, the dreaded National Environmental Protection Act (NEPA) would erect countless road blocks. Were the United States to acquire Greenland, could it by statute simply exempt that territory from all federal environmental laws? I think that sort of move would stimulate corporate investments needed to facilitate a potential acquisition of the territory. (The Truman administration offered Denmark about $100 million in gold and oil rights in 1946.) Moreover, could Congress grant exclusive jurisdiction for all Greenland cases to (let's say) the Fifth Circuit? It never made sense to me why Puerto Rico is in the First Circuit, in far-away New England, rather than much closer in the Eleventh-formerly-Fifth Circuit.

Second, speaking of Puerto Rico, I suspect Trump's aspirations may include adding some territories and dropping others. There is an ongoing debate whether Puerto Rico should be granted statehood or become independent. I realize the Puerto Rican people have not made a final decision on that issue. Congress has the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Could Congress decide on its own to grant Puerto Rico independence, and deem it no longer a territory of the United States? Or is the United States obligated to maintain a territory forever?

I don't know the answer. The United States granted the Philippines independence through a treaty. But could it be done unilaterally by statute? Justice Sotomayor alluded to this issue, indirectly in the PROMESA case:

Further, there is a legitimate question whether Congress could validly repeal any element of its earlier compact with Puerto Rico on its own initiative, even if it had been abundantly explicit in its intention to do so. The truism that *494 "one Congress cannot bind a later Congress," Dorsey v. United States, 567 U.S. 260, 274, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), appears to have its limits: As scholars have noted, certain congressional actions are not subject to recantation. See, e.g., Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1, 14 (1953) (listing as examples the congressional grant of independence to the Philippine Islands and congressional grant of private title to public lands under homestead laws); Issacharoff, 94 Ind. L.J., at 14 ("Once a Congress has disposed of a territory, of necessity it binds future Congresses to the consequences of that decision"); T. Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 90 (2002) ("The granting of neither statehood nor independence may be revoked, nor may land grants or other 'vested interests' be called back by a subsequent Congress").

Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 590 U.S. 448, 493–94, 140 S. Ct. 1649, 1677–78, 207 L. Ed. 2d 18 (2020) (Sotomayor, J., concurring).

Third, on New Year's eve, I had occasion to point out an error the Chief Justice made about the Articles of Confederation. (Yes, the Articles provide for courts and judges.) There is another provision of the Articles that surprisingly has not gotten much attention of late. (On the first day of ConLaw, I cover the entire Declaration, Articles, as well as the Constitution; my students get it.)

Article XI of the Articles of Confederation provides:

Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.

Who else knew that was in one of our organic documents? Now, I will make an argument to infuriate people. The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

Treaties which "shall be made" under the Constitution shall be the Supreme Law of the Land. But also, treaties previously "made" under the Articles of Confederation government remain the Supreme Law of the Land. For example, the Treaty of Paris was negotiated under the Articles government, and remained binding Justice the same.

Could it be argued that the invitation made to Canada to join the "confederation" remains valid, since it has not yet been rescinded? Could Canada obtain statehood with "all the advantages of this union" without having to be formally admitted as a state? I told you I would infuriate people.

But would Trump really want all of Canada? Or maybe just Alberta, a fairly conservative province with vast oil and gas deposits, that could be exempted from NEPA. Maybe the people of Alberta might even favor statehood. And the Articles of Confederation may provide a fast-pass for admission.

Fourth, I've long thought about a constitutional amendment that would allow the people to redraw the state boundaries everyone so often by popular referendum. The states would be required to accept incoming property and to surrender outgoing property. The number of states would have to remain fixed, and the moves would have to be contiguous. But the people, perhaps on a county-by-county basis, can jump around. Consider a few examples. My home town of Staten Island could vote to join New Jersey. Eastern Washington and Oregon could vote to join Idaho. Northern and Eastern California could join Nevada (California would stretch from Sacramento to San Diego). Northern Virginia could join Maryland. El Paso could leave Texas and join New Mexico. The Florida Panhandle could join Alabama. The people of upstate New York can join Vermont. The Upper Peninsula of Michigan could join Wisconsin (and generation of Michiganders would no longer have to demonstrate where they live by holding out their hands). Western New York could join Pennsylvania.  Philadelphia could join Delaware to basically become its own state. Some parts of Western Pennsylvania could join Ohio. And Northern Maryland could join Pennsylvania--rejigger the Mason-Dixon line. Maybe the state of Alberta could be stretched out to reach Alaska! This proposal would allow people to join states that more closely align with their values.  Red states would become redder, blue states would become bluer, and purple states would be harder to find.

I realize nothing will likely come from any of this, but it is fun to ponder how the Constitution interacts with these issues.

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[Josh Blackman] Trump Goes 0-2 In The Span of About 30 Minutes

The first few months of the Trump Administration felt like a marathon run at a sprint pace. It was nonstop action in the courts that was sometimes difficult to keep up with. This week provides a preview of things to come.

In the New York criminal case, Judge Merchan announced that he would sentence Trump on Friday, January 10 to a term of "unconditional discharge."

In the Florida criminal case, Jack Smith announced that he would transmit his report on the Trump J6 case, and Attorney General Merrick Garland planned to release it on Friday, January 10.

And at the Supreme Court, on Friday, January 10, the Supreme Court would hear oral arguments in the TikTok case. Lurking in the background of that case was Trump's brief asking the Court to grant some sort of temporary relief so he can make a deal.

January 10 became this cosmic date on which all legal matters converged.

But it would be January 9 when most of the issues would be settled. Around 7:17 p.m., the Supreme Court denied Trump's emergency motion to stay the sentencing by a 5-4 vote. (I'll have more to say about that split later.) About 30 minutes later, at 7:46 p.m., an unsigned order from the Eleventh Circuit denied the emergency motion from Trumps two co-defendants, asking to block Garland's release of the Smith report.

Back-to-back losses. Wham-bam, thank you ma'am.

The sentencing of Trump will be held Friday morning. I wonder if Trump will have a chance to make a statement during the sentencing. My suggestion: twelve New Yorkers voted to convict me, and seventy-seven million voters didn't care. And around the same time that Trump is in the New York hearing, the TikTok oral argument will begin.

As I read the Eleventh Circuit's order, Judge Cannon's injunction was not vacated, as DOJ did not formally appeal that order. And Judge Cannon's injunction remains in place for three days after the Eleventh Circuit's ruling. The Florida defendants will probably take an emergency appeal. And I suspect Circuit Justice Thomas will grant an administrative stay, with an expedited briefing schedule. If my math is right, SCOTUS could rule on the matter on January 18 or 19, right before the inauguration. Garland can release the report shortly before he loses the job. If, for whatever reason, the process drags on past January 20, that report will likely never see the light of day.

What a strange confluence of legal events, all at once. Trump is once again the fulcrum of the legal order. Everything moves around him.

Update: Shortly after I published this post, around midnight, DOJ filed an appeal from Judge Cannon's ruling. The appeal asks the Eleventh Circuit to vacate the injunction. There is now a race to SCOTUS to get an administrative stay. Alternatively, DOJ seeks mandamus.

You can teach an entire class on federal and state court appellate procedure based on the events of the past few days.

The post Trump Goes 0-2 In The Span of About 30 Minutes appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: The Court Should Grant Cert in Snope

Four Second Amendment petitions were distributed for the Court's conference on Friday January 10.  I just posted on the merits of these cases.  A dramatic development has just occurred showing the dire need for the Court to clarify its jurisprudence in this area.  The best case to do so is , which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes.

Here's the urgency.  Yet another state, Colorado, is about to ban virtually all semiautomatic rifles, large numbers of semiautomatic pistols, and even a number of semiautomatic shotguns.  The previous state bans encompass America's most widely-held rifles such as the AR-15, but they don't apply to semiautomatic rifles that do not have pistol grips or other cosmetic features.  The Colorado bill will ban ALL semiautomatic rifles that use a detachable magazine, which means almost all semiautomatic rifles.  No other state goes that far.

The bill, SB 3, defines a "specified semiautomatic firearm" to include a "semiautomatic rifle with a detachable magazine."  That will include a Browning BAR Semi-Auto rifle, a traditional hunting rifle that comes with a magazine holding only three rounds.  The only exemption is for rifles that use .22 rimfire rounds, which cannot be used for large game.

SB 3 will also ban a "gas-operated semiautomatic handgun with a detachable magazine," which would include countless pistols such as the S&W M&P 5.7.  It doesn't matter that the Supreme Court in Heller held that handguns as a class are protected by the Second Amendment.

The bill will also ban a "semiautomatic shotgun with a detachable magazine," such as a Remington 870 DM which comes with a six-round magazine.  While most semiauto shotguns use a tubular magazine, detachable magazines are safer as they allow unloading without chambering each round.

SB 3 will make it a crime to transfer, sell, or purchase a specified semiautomatic firearm. A first offense will render one liable for a $250,000 fine. In addition to imprisonment, conviction for a second offense will leave the person ineligible to possess any firearm.

According to the Colorado Sun, SB 3 has 18 Senate cosponsors, and only 18 votes are needed for passage.  The Sun notes that it will "almost certainly be approved by the House, where it has 24 original cosponsors."  In support of the bill, Everytown mischaracterizes the subject firearms as "high-powered, military style firearms."

Some states and some circuit courts are pushing the envelope against the Supreme Court's Second Amendment rulings.  It's time for the Court, as Chief Justice Marshall famously put it, "to say what the law is."

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[David Bernstein] "One can have different views about the definition of genocide, but one may not use definitional disputes to deny genocide."

In a tweet last year (that I just came across), the Lemkin Institute for the Prevention of Genocide, long captured by the far left, writes: "The Lemkin Institute has had it with the cynical lies and propaganda from Israel and the USA. One can have different views about the definition of genocide, but one may not use definitional disputes to deny genocide."

Where to begin? If Party A and Party B are arguing over whether Israel is committing genocide, and Party A says, "genocide requires an intent to wipe out a large percentage of a civilian population defined by race, ethnicity, or religion, and action in accordance with that attempt, and that does not describe Israeli action in Gaza," and Party B says, "Israel is committing genocide because I believe that it has a long-term plan to dispossess and expel all Palestinians, and the Gaza War is consistent with that plan," *of course* the definitional dispute should be used by Party A to deny there is a genocide (and Party A could add that just because Party B believes something, doesn't make it true!)

Let's try out the Institute's perspective in a murder case. Defense lawyers: "Ladies and gentleman of the jury, the definition of murder in this state requires both malice aforethought by the accused, and action resulting in the death of the victim. However, my client had no such malice, and the victim is still alive." Lemkin: "Objection, we don't think murder requires either malice aforethought or death, and one may not use definitional disputes to deny murder."

How about a rape case: "In New California, the statutory definition of rape states there must be a lack of consent to sexual contact, and that contact must involve penetration of a bodily orifice. My client had both written and verbal consent to initiate sexual contact with the accuser and she has acknowledged to this court that there was no penetration of any orifice." Lemkin: "Objection, we believe that rape is solely a matter of the intentions of the accused, and one may not use definitional dispute to deny rape."

What Lemkin really seems to be saying is that if they want to accuse Israel of genocide because it suits their propaganda interests, how dare anyone object! Indeed, they pretty much say so: "Let us be clear: Israel is committing genocide in Gaza." How do we know? "These are not political statements. They are statements that are made from knowledge and experience." Oh, well that settles it.

Wait, there is more: "Nevertheless, you do not need a PhD , a law degree, or X-ray vision to see the genocidal dimensions of Israel's carnage in Gaza." No, but you do need an accurate definition of genocide."

"It is clear in the behavior of the state and its military, on full display in yesterday's horrific bombardment of a Rafah camp." Classic example of saying something is clear to obscure the fact that it's not only far from clear, you don't have any evidence at all. As far bombardment of enemy territory, that's pretty much what happens in a war, and war, as such is not genocide.

Lemkin's social media people seem to be of the mindset of those who think if you say something with enough vigor, emotion, and anger, it means that people should believe you. But you know what you need to support a charge of genocide? First, you need an accurate definition of genocide. Then, you need evidence that the behavior of the state actor in question meets that definition. And if your definition of genocide is wrong in the first instance, than of course one can use that "definitional dispute" to deny there is genocide.

If it weren't for the serious consequences of blood libel, I'd feel embarrassed for them.

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[Eugene Volokh] Fee Award in Judicial Watch's Georgia Open Records Act Lawsuit Against Fani Willis

From Friday's decision by Fulton County (Ga.) Superior Court Judge Robert McBurney in Judicial Watch v. Willis:

Plaintiff submitted an Open Records Act (ORA) request to Defendant on 22 August 2023 by way of Fulton County's ORA on-line "portal." That same day, Plaintiff received confirmation that its request had been delivered and would be channeled to the "appropriate department" (presumably the District Attorney's Office). The following day, the County's Open Records Custodian sent Plaintiff an e- mail confirming that the District Attorney's Office had received the inquiry and asking Plaintiff to "simplify" its ORA request. Literally five minutes later, before any simplification had occurred, Plaintiff received a second e-mail from the Records Custodian: "After carefully reviewing your request. (sic) We do not have the responsive records."

This response was perplexing and eventually suspicious to Plaintiff, given that Plaintiff subsequently uncovered through own effort at least one document that should have been in the District Attorney's Office's possession that was patently responsive to the request. This discovery prompted the current litigation, filed in March 2024, seeking an order directing Defendant to comply with the ORA and provide all responsive records. During the pendency of the litigation, Defendant thrice more denied the existence of any responsive records, once in a request for admission and twice via answers to interrogatories. Every time: we have searched and there is nothing.

Defendant ultimately defaulted and this Court entered an Order on 2 December 2024 directing Defendant "to conduct a diligent search of her records for responsive materials" and to provide any responsive records that were not legally exempted from disclosure. If Defendant elected to withhold all or part of any responsive records, she was further directed to comply with O.C.G.A. § 50-18-71(d) by identifying the bases for the withholding.

Defendant's compliance with the Court's 2 December Order consisted of an undated, unsigned two-page memo to Plaintiff from Defendant's "Open Records Department." (Attached to Plaintiff's 17 December 2024 Notice of Filing). In this memo, Defendant announced that there still were no records responsive to one set of Plaintiff's requests (communications with former Special Counsel Jack Smith) but that there were in fact records responsive to Plaintiff's second set of requests (communications with the United States House January 6th Committee)—but those were exempt from disclosure. {Defendant's Open Records Department identified the exemptions as O.C.G.A. § 50-18- 72(a)(4), (a)(41), and (a)(42), excepting from the ORA's disclosure requirements those materials involving pending investigations, attorney-client privilege, and work product, respectively.} Defendant, despite these reservations, did gamely attach to her memo a copy of the letter she wrote to the Chairman of the House Committee that (1) does not appear to be covered by any of the exemptions identified in the memo and (2) had already been identified by Plaintiff as a responsive record that was wrongly withheld.

Somehow something had changed. Despite having previously informed Plaintiff four separate times that her team had carefully searched but found no responsive records, now there suddenly were—but they were not subject to disclosure under the ORA. Plaintiff's deposition of Defendant's Records Custodian shed some light on this mystery: he admitted that there was no search for records back in August 2023. Just a "no, go away." He further clarified that, when Plaintiff did not go away but instead sued, there still was no organized, comprehensive examination of the District Attorney's Office's records. That would await the Court's 2 December 2024 Order.

The ORA is not hortatory; it is mandatory. Non-compliance has consequences. One of them can be liability for the requesting party's attorney's fees and costs of litigation. To recover its relevant and reasonable fees and costs under the ORA, Plaintiff must do two things. First, it must show that Defendant violated the ORA. Second, Plaintiff must also demonstrate that Defendant lacked "substantial justification" for the violation(s). Here, Plaintiff has done both.

Most basically, by operation of law Defendant acknowledged violating the ORA when she defaulted. But actual evidence proves the same: per her Records Custodian's own admission, the District Attorney's Office flatly ignored Plaintiff's original ORA request, conducting no search and simply (and falsely) informing the County's Open Records Custodian that no responsive records existed. {And even after litigation began, Defendant's Records Custodian initially merely asked certain employees if they thought they had any responsive records; there was no rigorous review of e-mails or case files.}

We know now that that is simply incorrect: once pressed by a Court order, Defendant managed to identify responsive records, but has categorized them as exempt. Even if the records prove to be just that—exempt from disclosure for sound public policy reasons—this late revelation is a patent violation of the ORA. And for none of this is there any justification, substantial or otherwise: no one searched until prodded by civil litigation.

Given this, the Court finds that relevant and reasonable attorney's fees and costs of litigation are properly awardable to Plaintiff pursuant to O.C.G.A. § 50-18-73(b).The evidence from the Court's 20 December 2024 hearing on attorney's fees shows that Plaintiff's counsel's billing rate is reasonable and that the items for which he billed are, for the most part, relevant to Defendant's ORA violation.

From the record made at the 20 December 2024 hearing, the Court finds that Plaintiff incurred $19,360 in attorney's fees related to Plaintiff's efforts to enforce compliance with the ORA. Related litigation expenses are $2,218. Defendant is thus liable to Plaintiff for $21,578 pursuant to O.C.G.A. § 50-18-73(b). That amount shall be paid within two weeks of the entry of this Order.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[David Kopel] The Great Joanne Eisen

Earlier this week, my longtime coauthor Dr. Joanne D. Eisen passed away. In this post, I'd like to describe one part of her admirable life: her scholarship and writing in support of human rights, particularly self-defense.

Joanne Dale Eisen was a wife, a mother, and a dentist. For most of her career, she lived in New York State. So did optometrist Dr. Paul H. Gallant, who passed away in 2015. Paul was a devoted husband and father. Paul and Joanne met via their mutual interest in the right to arms and began a long-term writing collaboration. Their families were very tolerant of how much time the pair spent on email and on the telephone working together.

In 2000, Paul and Joanne approached me, and we began a decade-long collaboration that resulted in a dozen law review articles and over three dozen magazine articles. A full list appears at the end of this Post. Joanne was an outstanding researcher, and she would gather sources and conduct the basic factual research. Paul would write a first draft, which I would revise, and to which I would add legal analysis.

Some of our short articles, especially our early articles for National Review Online, addressed topics in the American right to arms debate. However, all of the journal articles, and many of the shorter ones, described the plight of defenseless victims in other nations. These articles covered Albania, Bosnia and Herzegovina, Cambodia, Canada, East Timor, Ethiopia (Anuak genocide), Guatemala, Jamaica, Kenya, Mali, New Zealand (Chatham Islands, Moriori genocide by Maori), Ottoman Empire (Armenian genocide), Panama, Papua New Guinea (Bougainville), Uganda, Solomon Islands, South Africa, South Sudan, Sri Lanka, Sudan, United Kingdom, and Zimbabwe. As the list indicates, Joanne was a tremendous researcher.

During the first decade of this century, the propaganda machines of the United Nations and the gun ban organizations were producing a vast quantity of disinformation to promote the prohibition of firearms, particularly firearms owned for personal defense against criminals, criminal gangs, and criminal governments. On the other side, there was very little scholarly rebuttal, other than what Paul, Joanne, and I produced. For example, the UN-fabricated claim that there are 740,000 global deaths annually from small arms, which we exposed in: How Many Global Deaths from Arms? Reasons to Question the 740,000 Factoid being used to Promote the Arms Trade Treaty, 5 NYU Journal of Law & Liberty 672 (2010).

More generally, the UN and other anti-human rights organizations enthusiastically promoted forcible confiscation of arms from decent people by pointing out the harms caused by firearms in the hands of criminals. Yet gun prohibitionists were typically reticent about describing what happened after disarmament was accomplished: namely mass murder and other atrocities perpetrated by governments or by entities allied with governments. Like Horatius at the Bridge, Joanne and Paul fought nearly alone to report the catastrophic consequences of disarming ordinary people, particularly in less-developed nations.

Joanne until shortly before her death, and Paul until his passing in 2015, also wrote many articles with other writers, including Canadian professor Gary Mauser and their Long Island friend Alan Chwick.

Joanne and Paul's scholarship on human rights has been cited in 44 law review articles, not counting in articles by me, and in dozens of books and journal articles in other disciplines.

Joanne's dedication to human rights was not an abstraction. During research on Ethiopia, Joanne came into contact with a dissident Ethiopian journalist from the oft-persecuted Oromo ethnic group, whom the government had attempted to assassinate. With my assistance (relying on the advice of immigration lawyers I knew), arrangements were made for him to escape and seek asylum in the United States. Joanne took him into her home and made him a de facto member of her family.

Like Paul Gallant, Joanne Eisen lived a life that changed the world for the better. Her scholarly legacy will endure for many years to come. Collaborating with Joanne and Paul has been one of the honors of my life.

Bibliography of Gallant and Eisen writing with Kopel

Journal articles, chapters, monographs

How Many Global Deaths from Arms? Reasons to Question the 740,000 Factoid being used to Promote the Arms Trade Treaty, 5 NYU Journal of Law & Liberty 672 (2010).

Justice for All: A Better Path to Global Firearms Control, 2 Jindal Global L. Rev. 203 (2010).

The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, 114 Penn State Law Review 891 (2010).

Gun Control and the Right to Arms after 9/11, in The Impact of 9/11 and the New Legal Landscape. (Palgrave MacMillan: Matthew J. Morgan ed., 2009).

Human Rights and Gun Confiscation, 26 Quinnipiac Law Review 383 (2008). Examines human rights abuses in gun confiscation programs in Kenya and Uganda, and in South Africa's quasi-confiscatory licensing law. Also provides the most complete collection ever presented of international survey data about why people in various countries own guns.

The Human Right of Self-Defense, 22 BYU Journal of Public Law 43 (2008). Rebutting a report by a UN Special Rapporteur claiming that there is no right of self-defense, this article surveys international law from its earliest days to the present, with extensive attention of the classical Founders of international law.

The Gold Standard of Gun Control, 2 Journal of Law, Economics & Policy 417 (2006). Book review of Joyce Malcolm's "Guns and Violence: The English Experience." In HTML.

Is Resisting Genocide a Human Right? 81 Notre Dame Law Review 1275 (2006). Using the Sudandese government's genocide against the Darfuri people as an example, the article studies the Genocide Convention and argues that resistance to genocide is a rule of international law that supersedes any contrary rule, so that the acquisition of arms by the targets of an ongoing genocide is lawful regardless of any restrictions in international or national law.

Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa. Independence Institute Issue Backgrounder no. 2006-F. June 2006. How U.N.-backed gun confiscation programs in Kenya and Uganda have led to murder, torture, and arson, and have turned tens of thousands of pastoral tribespeople into starving refugees. This monograph was released at the opening of the UN Small Arms conference, and a few days later, the UN announced the suspension of its funding for the East African gun confiscation program. In PDF. In HTML.

Microdisarmament: The Consequences for Public Safety and Human Rights, 73 UMKC Law Review 969 (2005). Examines UN-sponsored programs to disarm people in Cambodia, Bougainville, Albania, Panama, Guatemala, and Mali. Alternate version in HTML.

Firearms Possession by "Non-State Actors": the Question of Sovereignty, 8 Texas Review of Law and Politics 373 (2004). The UN's theory that "non-state actors" (i.e., ordinary citizens) should not have firearms is based on the false premise that the government rather than the people are sovereign.

Global Deaths from Firearms: Searching for Plausible Estimates, 8 Texas Review of Law and Politics 114 (2003). Dissecting the false figures invented by the UN and its minions.

Gun Ownership and Human Rights, 9 Brown Journal of World Affairs 3 (Winter/Spring 2003, no. 2). Alternate version in HTML.

Excerpts in textbooks

Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa, in Gun Control. Global Viewpoints (Greenhaven/Gale, 2010).

An Arms Trade Treaty Could Encourage Human Rights Violations, in The Arms Trade. Current Controversies series. (Greenhaven Press 2009).

Short articles

The Guns of Sudan. Gun confiscation in South Sudan makes a bad situation for human rights even worse. The New Ledger. July 7, 2009.

Genocide Resistance. The possession of arms saved many Armenians. National Review Online, Oct. 16, 2007.

Why Reveal Who's Concealed? What possible motive could some arrogant anti-gun newspapers have for publishing the names of Right-to-Carry permit holders? America's 1st Freedom, May 2007.

Guns Don't Kill People, Gun Control Kills People. Uganda terrorizes its own citizens under the auspices of a UN gun control mandate. Reason Online. Feb. 23, 2007. Español.

The Other War in Ethiopia. The destruction of the disarmed Anuak people of southwestern Ethiopia. Tech Central Station. Dec. 29, 2006.

Why is this Woman Smiling? Leonardo da Vinci, one of the greatest painters of all time, also contributed to society something far more valuable than the Mona Lisa--the first self-igniting firearm. America's 1st Freedom, Oct. 2005.

Can 911 Save You? America's 1st Freedom. May 2005.

911 Is a Joke… or Is It? Let's Find Out. Tech Central Station. Jan. 5, 2005.

Ambrose E. Burnside. General, Governor, Senator, Civil Rights Activist and First President of the NRA. America's 1st Freedom. Nov. 2004.

Avoiding Genocide. The right to bear arms could have saved Sudan. National Review Online. Aug. 18, 2004.

The Hero of Gettysburg. Winfield Scott Hancock shot straight. The Civil War General who became the Democratic nominee for President in 1880, and later the President of the National Rifle Association. National Review Online. July 2, 2004.

Lions vs. Tigers. The precarious state of Sri Lanka. National Review Online. Mar. 3, 2004.

Up in Flames. Mali's gun show. National Review Online. Dec. 5, 2003.

A Moriori Lesson. A brief history of pacifism. When the Maori invaded the islands of the Moriori, the leader of the latter was so committed to pacifism that the Moriori would not fight back. As a result, they were enslaved and exterminated. National Review Online. Apr. 11, 2003.

When Policy Kills. More deadly U.N. issues. The Srebrenica massacre and the U.N.'s disarmament policies. National Review Online. Jan. 27, 2003. In italiano.

Disarming Uganda. International gun-control nonsense. National Review Online. Dec. 11, 2002.

No Choice. "Weapons-effect" paralysis. National Review Online. Apr. 17, 2002. Addressing the assertion that the mere sight of a gun or words about a gun make people violent.

Birth of a Nation. What East Timor and the U.S. have in common. And what they don't. National Review Online. Mar. 12, 2002. With Paul Gallant & Joanne Eisen.

Little Island that Roared. The story of Bougainville, and gun prohibition. National Review Online. Feb. 6, 2002.

Her Own Bodyguard. Gun-packing First Lady Eleanor Roosevelt. National Review Online. Jan. 24, 2002.

Speak No Evil. The European Union revives the offense of Seditious Libel. Chronicles. Feb. 2002.

A World Without Guns. Be forewarned: It's not a pretty picture. If there were no guns, then physically powerful men would have their way with everyone else. National Review Online. Dec. 5, 2001. En français. Español. Português. Italiano.

Jamaica Farewell. The consequences of gun prohibition. National Review Online. Sept. 10, 2001. In português.

Mad Cows, Madder Government. The U.K. government goes crazy over mad cow disease. National Review Online. June 12, 2001.

Zero Good Sense. (Zero tolerance). Persecuting schoolchildren for playing with finger guns is mean-spirited. National Review Online. June 6, 2001. In italiano.

Defending Gun Shows. The groups attack gun shows are out to destroy the Second Amendment. Mar. 15, 2001. National Review Online.

Ripe for Genocide. Zimbabwe. National Review Online. Feb. 13, 2001.

Living in Fear. "Community" fear as a basis for gun restrictions. National Review Online. Jan. 17, 2001.

No Canada. Why America would follow Canada's political lead is mind boggling. National Review Online. Dec. 20, 2000.

Solomon Says. The madness of civilian disarmament in the South Pacific. National Review Online. Nov. 27, 2000.

Jamaican War Zone. An island of intoxicative beauty? Try again, mon. National Review Online. Oct. 30, 2000.

Not-so Safe-Storage Laws. The only ones "safe" are the intruders. National Review Online. Oct. 18, 2000.

South African Stupidity. Disarming the citizenry is not the answer. National Review Online. Oct. 11, 2000.

Gunning for the Kiddies. What kind of a "climate" has taken hold of society? National Review Online. Sept. 22, 2000.

Violent Misinformation Campaign. Don't look to the government and the media to explain drops in violent crime. National Review Online. Sept. 15, 2000.

Instant Check, Permanent Record. National Review Online. Aug. 10, 2000.

Civil Disobedience in Canada. National Review Online. Aug. 2, 2000.

Fear in Britain. They have no guns -- so they have a lot of crime. National Review Online. July 18, 2000. This article was cited in a letter which 18 state Attorneys General wrote to U.S. Attorney General John Ashcroft commending his recognition of the Second Amendment as an individual right.

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[Eugene Volokh] Man's Assault Claim Against Woman Who Defended Man's Ex-Girlfriend Loses to Defense-of-Others Defense

In Judge Wendy Beetlestone's opinion today in León v. Hanoch, the parties were attorney coworkers; León had been sexually involved with Hanoch's friend Goodman, who was also a coworker. "Throughout the relationship, Goodman told Hanoch that León was stalking, threatening, and harassing her; that he was hazing her at work; and, that she was scared for her safety." Here's the court's summary of the facts and procedural history:

The instant lawsuit is based on events that occurred after the three spent a night barhopping in Philadelphia. As the night began to wind down, Goodman left the bar, telling her friends that she would order an Uber home. León followed, and Goodman texted Hanoch that she was trying to "get away" from him. Hanoch pursued them both, at one point running across the street, against traffic. During her pursuit, Goodman called Hanoch, crying, and reiterated that León was chasing her down the street.

Once Hanoch caught up to León and Goodman near Philadelphia City Hall, she saw León's hands outstretched towards Goodman as if he was trying to get hold of her while Goodman was "cowering away" from León. She also saw that Goodman was "sobbing, her make-up was streaked everywhere." Nearby—positioned catty-corner to Goodman and León— Hanoch noticed two police officers inside their squad car. She approached them and told them that she thought Goodman was being sexually assaulted.

When the officers did not engage with the situation, Hanoch spun around and inserted herself between Goodman and León, yelling at León while she did so. Although in her deposition she testified that she did not remember exactly what she said at the time, the parties agree that Hanoch said something like "Get away from her. Don't ever touch her again. I'll kill you if you ever come near her." {In his Complaint, León alleged that Hanoch struck him during the confrontation as well but brought only an assault claim against Hanoch, not a battery claim.}

That evening spurred a handful of legal proceedings. Goodman and Hanoch filed a complaint with the New Jersey State Bar, alleging that León had assaulted Goodman. Goodman also filed a petition for a Protection from Abuse ("PFA") order in Delaware Family Court. That petition was referred to a Commissioner of the Delaware Family Court, and the Commissioner issued a 52-page order making a series of factual findings supporting the conclusion that León had abused Goodman. As a result, the Commissioner granted Goodman's petition. León appealed, but the PFA order was affirmed in its entirety….

León sued, among other things for assault, but the court concluded that claim was precluded by the defense-of-others defense, which applies—both in civil and criminal cases—when "the defendant [reasonably] believes that … another is in imminent danger of bodily harm" (cleaned up):

The undisputed facts … confirm that Hanoch subjectively believed that Goodman was in danger of imminent bodily harm. The record now includes Hanoch's testimony that she believed as much, and León does not offer any evidence to the contrary, nor in his briefing does he attempt to argue that the subjective element is not met….

As for the objective element, as previously determined and now confirmed by the record, the undisputed facts are that Hanoch held a reasonable belief that León posed a threat of imminent bodily harm to Goodman. It is undisputed that: Goodman had previously told Hanoch that León was harassing her (which a Delaware court found to be true); Goodman both texted and called Hanoch, alerting her that she was fleeing León's pursuit; Hanoch witnessed Goodman crying, with her makeup streaking down her face, apparently trying to get away from León; and, León had his arms outstretched in what appeared to be an attempt to grab hold of Goodman when Hanoch arrived on the scene. Together, those facts would lead a reasonable person to believe that Goodman was in danger ….

León does not dispute any of those facts, but he does argue that Hanoch's belief that Goodman was in danger was unreasonable because: two police officers were nearby; Hanoch did not see León touch Goodman; both Goodman and León were clothed when Hanoch caught up to them; and, León immediately left the scene after his confrontation with Hanoch…. [But] León's departure from the scene after Goodman's purported assault says nothing about whether her belief that he posed a threat to Goodman was objectively reasonable at the time she purportedly assaulted him. Similarly, whether León had yet to touch Goodman or whether the two were clothed does not render Hanoch's belief that Goodman was in danger unreasonable.

The defense-of-others inquiry considers "all the circumstances known to" the defendant. Hanoch's knowledge of León's abusive relationship with Goodman, her understanding that León had been in pursuit of Goodman through Center City Philadelphia while Goodman attempted to escape, and her witnessing Goodman in a state of obvious distress, which are all facts that León does not dispute, suffice to establish an objectively reasonable belief that Goodman was in danger.

And the court held that the defendant could recover her attorney fees and other litigation costs:

In Pennsylvania, when a defendant "uses force … in the protection of other persons" and "prevails in a civil action," "the court shall award reasonable expenses to the" defendant. 42 Pa. Cons. Stat. § 8340.2(a)(1)-(2), (b). Based on that cost-shifting provision, Hanoch requests an additional fourteen days to submit a petition under the statute detailing "attorney fees, expert witness fees, court costs and compensation for loss of income." Id. at § 8340.2(b).

León argues that the cost-shifting statute does not apply, because he has not brought a battery claim, so there is no use of force at issue here. León cites no case to support such a narrow reading of the statute, and construing the statute so narrowly would lead to absurd results. To read the statute as León sees it would incentivize more violence: someone who commits a battery to defend another would be entitled to reasonable expenses, but someone who commits an assault in defense of others would not.

In any event, the statute straightforwardly applies when self-defense and defense-of- others justifications are established, and self-defense (and therefore, by extension, defense-of-others) as a justification is just as available in assault cases as in battery ones.

Because no genuine dispute exists as to Hanoch's defense-of-others justification, and because she is entitled to summary judgment as a matter of law, Hanoch's Motion for Summary Judgment shall be granted, and she shall have fourteen days to file a petition for "reasonable expenses" under 42 Pa. Cons. Stat. § 8340.2.

In an earlier decision, Judge Beetlestone rejected León's defamation claim against Hanoch as well, on the strength of the state Commissioner's "factual findings … essential to his decision to issue the PFA order":

León … he states that "the issue of defamation and the additional torts were not decided with the Delaware Court's entry of the" PFA order. While true, this is entirely beside the point. Issue preclusion bars "relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit." It is thus of no moment that that the PFA proceedings did not specifically involve a claim for defamation; what matters is the Commissioner's finding that León abused Goodman, a finding that was necessary to his decision to grant her PFA petition….

[T]he factual findings of the Commissioner's PFA order make short work of León's defamation claim. Defamation stems from a false statement of fact, and in Pennsylvania, a plaintiff's complaint must "on its face must specifically identify what allegedly defamatory statements were made by whom and to whom." Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429 (E.D. Pa. 2000). Here, the allegedly defamatory statements identified in the Second Amended Complaint fall into three general categories. First, León alleges that after their altercation in December 2022, Hanoch and Goodman falsely informed their employer that he had "engaged in inappropriate conduct toward Goodman." Second, he alleges that shortly thereafter, Goodman and Hanoch filed a police report and PFA petition which against pressed these false accusations. (Included in this category are León's allegations that Defendants continued to republish these statements by repeating them in various filings submitted in this matter.) And third, he alleges that Hanoch and Goodman filed a defamatory complaint with the New Jersey state bar which "included statements about Plaintiff's character that were false when made."

But the factual assertation at the core of each of these allegedly defamatory statements is that León had abused Goodman. And the PFA order found that this is exactly what happened. As explained, the Commissioner concluded Goodman and Hanoch's account of what transpired between them and León credible, that León's account was largely uncredible, and that León committed acts of abuse within the meaning of the Delaware Family Code. In other words, the Commissioner found that the statements that León maintains were defamatory were true. That finding is fatal to León's defamation claim since falsity is an essential element of the tort…

Amy Epstein Gluck and Benjamin K. jacobs (Pierson Ferdinand LLP) represent Hanoch.

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[Eugene Volokh] Nate Silver on "The Rise and Fall of 'Fact-Checking'"

From Silver's Substack newsletter yesterday:

So, the news is that Facebook is eliminating a partnership that began in December 2016 with independent fact-checking organizations and replacing them with a Twitter/X style Community Notes program.

To which I say: that sounds fine, actually….

My impression is that journalists who label themselves as misinformation experts or fact-checkers have a relatively poor capacity for self-reflection, perhaps because these are such self-aggrandizing labels to begin with. But that's a hard claim to prove. It might be wrong, and even if it's mostly right, I'm sure you could point to counterexamples. Conversely, I have a relatively favorable impression of Community Notes on X. But it's a relatively young program, and community-driven moderation can be hard to scale and can eventually develop its own toxic hierarchies — and Facebook is a much bigger platform than X.

I just don't think it has done journalism much good to have a group of people specifically designated as misinformation experts or fact-checkers — that should be everyone's job. And although I don't really trust Zuckerberg's motivations, it was fact-checkers who pressured Facebook for the partnership in the first place, not the other way around. It's another chapter in the long history of journalists trying to [sow] ground with Meta and not liking what they reaped.

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[Josh Blackman] Talking to the Justices About References

ABC News reports, "Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration." ABC obtained a statement from Justice Alito to explain the context:

"William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position," Justice Alito confirmed to ABC News Wednesday. "I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon."

"We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed," Alito said. "We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect."

I have a few thoughts on this story.

First, let's start with the byline: Katherine Faulders, Jonathan Karl, and Devin Dwyer. Dwyer is ABC News's Supreme Court Correspondent. Since he is listed last, I think it is safe to assume this was not his scoop. Karl is ABC News chief Washington. Again, if this was his scoop, I would think his name would come first. Faulders is a Senior Reporter at ABC News. I am not familiar with her work, but she has written many recent stories about the Trump cases. Given that her name came first, she was probably the person who obtain the information.

Second, how did Faulders obtain this information? Again, it is not clear that she has "sources" within the Supreme Court. And I can't even imagine who in the Court would have told her this! Justice Alito? Someone in the Alito chambers? This is unthinkable, especially after the Dobbs leak. The story provides very little information about the sourcing:

Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration, ABC News has learned.

If the info did not come from the Court, the most likely source is from the other end of the call. No, I don't think President Trump spoke to Faulders. More likely? Trump told someone that he spoke to Alito, and that person told someone else, and that someone else told the press. Or maybe something like that happened.

NEWS -- Supreme Court Justice Alito spoke to Donald Trump Tuesday to recommend a former law clerk for a job in the new admin. Call occurred hours before Trump's lawyers asked the justices to block Trump's criminal hush money sentencing. Reporting w/ @jonkarl & @devindwyer

— Katherine Faulders (@KFaulders) January 8, 2025

Third, ABC News, and other outlets, are spinning this as President Trump talking to Alito shortly before Trump's emergency petition was filed. And Alito's comment says he wasn't aware that the petition had been filed when he took the call. It was safe to assume that Trump would go to the Supreme Court as soon as Judge Merchan scheduled the sentencing for Friday. But I don't think it would have mattered if Alito knew the petition was coming, or if Trump spoke to Alito after the petition was filed.

Fourth--and this may come as a shock--Judges are allowed to talk to parties in litigation about matters that do not concern litigation. It's true! The problem with ex parte communications is that a judge may disclose some information to only one party. But no cannon of ethics prevents a judge from having unrelated communications with someone who has an interest in the litigation. Judges are not hermits. Trust me, this happens all the time. And I think it often occurs in the context of job recommendations. I can prove it.

In 2016, Vice News used FOIA to obtain email correspondences between the Department of Justice and Supreme Court Justices. A November 2013 email was sent from Solicitor General Donald Verrilli to Justice Sotomayor about a law clerk applicant.

Dear Justice Sotomayor: I understand that [redacted] has given you a call to discuss [redacted]. I assume he has provided you with the information you need but if I can be of any further assistance I'd be most happy to talk with you. Thanks for reaching out to us.

To be clear, the Justice reached out to the SG about a potential law clerk, and the SG returned the message and offered to speak to the Justice.

At this very time, several very important cases filed by the SG were pending before the Supreme Court, including Noel Canning, Hobby Lobby, and more. Just one week earlier, Verrilli had argued Bond v. United States. This correspondence is not unique. I've studied the papers of many Justices. And they are replete with letters and correspondences with lawyers and parties involved in litigation. (I have in my files correspondences between Justice Brennan and Lawrence Tribe, who was a frequent litigant before the high court.) Is there any suggestion that it was inappropriate for a sitting Justice to talk to the top lawyer for the government about a job reference? Of course not. Why?

Fifth, with Trump, everything is different. The subtext of the ABC News article is that Trump was making the phone call for some illicit purpose--that he was trying to gain some influence on Justice Alito, or affect how he would rule in New York case. Is there any evidence of this? Of course not. What we are left with is yet another instance where Trump is denied the sort of customary privileges that are afforded to all other politicians. Trump can't even make a phone call to get a reference. As I recall, he was impeached based on a phone call. More of the same.

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[Eugene Volokh] Midweek Midday Open Thread

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