Why does law school cost so much? An important question, to those of us struggling under the weight of law school debt. George Leef fingers a culprit: The ABA, a greedy, competition-stifling cartel that has, for the past 80 years or so, gotten states to limit bar membership to graduates of ABA-accredited schools, and then has based accreditation on qualities that make law school more expensive (thus limiting the number of lawyers, and therefore competition). Sounds plausible to me.

Think about it: If it weren't for the ABA's state-enforced requirement that you graduate from an accredited school before taking the bar, you could take the bar after studying the law on your own (as did Abraham Lincoln, Leef points out).

I saw The Two Towers the other day, and it was every bit as magnificent as I had been led to expect.

I disagree, however, with one of the OxBloggers, who says that he doesn't want to see the film because "from where I'm standing, it's hard to produce more one-dimensional characters than Tolkien has."

Assuming that this description is accurate, so what? Must every film, or every piece of literature, have complex, well-developed characters? Isn't that a rather narrow and, well, one-dimensional view of what makes literature worthwhile?

Tolkien excelled at creating myth -- stories that thrill the heart. And in myths of the sort Tolkien wrote, it is actually better if the characters are rather simple and straightforward, and don't get in the way of the story. The whole point of it is to enjoy the story in and of itself, not to ponder the inner workings of the mind of Aragorn. One doesn't read Jack and the Beanstalk, for another example, in order to marvel at the character development undergone by little Jack.

To criticize Tolkien for having one-dimensional characters is like criticizing Jane Austen's books for lacking any sweeping battles, heroic rescues, or other militaristic adventures. In either case, the error is in mistaking one narrow genre of literature as the model for all genres.

William Sulik discusses his Christmastime movie viewing:

Last weekend, my kids and I all watched the greatest Christmas movie ever -- It's a Wonderful Life. I always revel in pointing out that's what mommy's job was -- shutting down S&L's (when she was with FSLIC). Yet, I haven't seen the second greatest Christmas movie ever -- Die Hard. I'm not sure when or if I'll be able to watch this -- of course the language complicates viewing...

I totally agree about It's a Wonderful Life, although I would put it among the greatest movies period, not just among "Christmas movies."

As for Die Hard, Sulik's mention of language brings to mind a broadcast version of Die Hard that I once saw. If you've ever seen the movie, you will recall the two-word line that Bruce Willis delivers at the climax of the movie as he drops the villain out of the skyscraper's window. "Yippy-ki-yay, m----- f------." Not the height of human eloquence, perhaps, but there it is.

Naturally, broadcast television won't allow that line to appear in its original state. And it's always interesting to see how the broadcast censors dub in replacement cuss words. A "f---ing" X becomes a "freaking X." "F--- you" becomes "Forget you," which is rather unimaginative (why not "flail you," or "flog you"?)

But "m----f----" presents a more challenging problem. Something has to replace the "m----" word as well. Which is why I wondered throughout this particular viewing of Die Hard how the broadcast censors were going to handle that line. It's not exactly a scene that can just be eliminated altogether.

And so the moment came. It was time for the climactic window-dropping scene. Then, in a voice obviously not Bruce Willis's, came the words: "Yippie-ki-yay Mister Falcon."

Mister Falcon? Mister Falcon?!?!? Anything would have been better than that. Why couldn't they have hired some screenwriter to take a thesaurus and come up with a better alternative? I can think of two, without hardly trying: "Murdering freak," or "mortal fool."

Brad DeLong goes off the deep end again:

A Question That Has No Good Answer
Why does our President--the child of two yankees--have a brother named after Confederate cavalry general J.E.B. Stuart, a guy who would round up free Blacks during Confederate invasions of Maryland, ship them back to Virginia, and sell them as slaves?

Posted by DeLong at 09:42 AM

By all appearances (see the comments on his post), DeLong means this seriously, although there is not the slightest shred of evidence that George and Barbara Bush came up with the nickname "Jeb" as a means of honoring Jeb Stuart. Apparently, if someone happens to share the same name as a repulsive historical figure, that is enough for DeLong -- it must be a deliberate attempt to honor the historical figure.

Assuming that DeLong has any intellectual consistency, here's another equally insightful post for him to consider putting on his blog: [tone of horror]"Why does an Orthodox Jew -- Joseph Lieberman -- share the same name as Josef Stalin, that notorious mass murderer?"[/tone of horror]

In the December issue of First Things, Father Neuhaus offers his thoughts on blogging, on why his Public Square column is not, in fact, the print equivalent of a blog, and an amusing aside on the New York Times:

It was not until 1975 that the Times Literary Supplement adopted the policy of running signed reviews. Reviewing a book on the centenary of the TLS, David Lodge writes: "T. S. Eliot believed that anonymity was a beneficial discipline, especially for the young critic, when practiced under the eye of a scrupulous editor like Bruce Richmond. In a tribute to the latter on his ninetieth birthday, Eliot said: ‘I learned to moderate my dislikes and crotchets, to write in a temperate and impartial way; I learned that some things are permissible when they appear over one’s name, which become tasteless eccentricity or unseemly violence when unsigned.’" One may take liberties when writing in one’s own name. It’s not as though the august editorial board of a publication had resolved that John Doe’s argument is really dumb. It’s simply Whatshisname’s opinion of John Doe’s argument.

At least I feel free to take such liberties in this space, although never, I hope, descending to the tasteless, eccentric, unseemly, or violent. Lodge refers to "the increasingly personalized, media–dominated cultural climate," and I’ve been thinking about that in connection with the "blogger" phenomenon. Many readers are no doubt familiar with the rapidly multiplying number of personalized weblogs (hence "bloggers") on the Internet. Andrew Sullivan is one of the phenomenon’s notable perpetrators and celebrants and he has remarked, half jokingly I assume, that this space is the original instance of blogging. This space is, I admit, largely composed of running and mostly random reflections and reactions occasioned by events, arguments, and sundry curiosities loosely related to the mix of religion, culture, and public life. And it is unabashedly personal.

Yet I would prefer not to be classed with the bloggers. Not out of snobbery, mind you. There are some important differences. For one thing, there are other editors involved, and it is by no means rare that they persuade me that I really don’t want to say something that I said. Most important, there is a very big difference between the bloggers’ daily or five–times–per–day postings and a journal that appears ten times a year. We have a lead time of weeks between going to press and the journal’s hitting the mails, which makes the "use by" date an important consideration. Especially in commenting on unfolding developments, one must ask, "How will this read a month from now?" And, given our readers’ propensity for saving issues, copying items for classroom use, and citing them in articles and books, one asks, "How will this read a year or two from now?" That is somewhat short of the wisdom induced by writing sub specie aeternitatis, but it does provide a measure of perspective. It lends itself to more considered reflection than, for instance, blogger Mark Shea’s clever riposte to Kathryn Jean Lopez’s point posted fifteen minutes ago.

Don’t get me wrong; I rather like the blogger insurgency. I quickly learned it can be addictive; going from link to link, you discover that you’ve wasted an hour or more on mildly entertaining ephemera. So I have a rule of giving the bloggers no more than fifteen minutes per day, which has the happy effect of cutting about the same amount of time from reading the Times, which in recent months, under the drearily leftist editorship of Howell Raines, has become less and less interesting, not to mention less and less reliable. Well, as you may have surmised, this little item rather perfectly illustrates the point, doesn’t it? Whether it will be of interest by the time you read this, I have no idea. But it is provoked by the estimable T. S. Eliot’s observation about personalized writing, and may therefore stand the test, if not of the ages, at least of a few weeks.

In a way, I wish Trent Lott had not resigned as majority leader, so that the Republicans in the Senate could take the unprecedented step of voting him down, as a signal of their overwhelming disapproval. But, I suppose, that's probably the precise reason why he went ahead and resigned today.

Eugene mentions the also-specious "rule" against ending a sentence with a preposition. He doesn't, however, make the obligatory reference to the bon mot Churchill supposedly uttered when a piece of his writing was "corrected" on this point: "This is the sort of bloody nonsense up with which I will not put."

Having written a Supreme Court brief on the Takings Clause, I've noticed that among academics (with a few exceptions such as Richard Epstein), the Takings Clause is the poor stepchild of the Bill of Rights. (Only the Second Amendment is treated with less respect.) Much scholarship on the Takings Clause seems to resent the idea that the government might have to pay when it inhibits people's property rights.

I wonder if this predominant view would change if local governments started expropriating the property that law professors really, really care about -- their own intellectual property.

Imagine that a local government set up a "Law Review Publication Program," whereby local government agents would put out a publication of law review articles that were seized from local law professors. And under the terms of the program, when a law review article is "taken" from a law professor, that professor can no longer claim any rights of authorship -- and cannot even lay claim to any of the ideas in the law review article, under penalty of being sued for copyright violations (because the article and all of its ideas now belong to the local government).

My hunch is that law professors would immediately see the glorious wisdom of forcing the government to internalize the costs of any activity that "takes" property, or the use thereof, from particular citizens.

It's always entertaining to see what searches led people to this blog (although I suspect it's more entertaining to the person who writes the blog than to anyone else). My favorites searches from today were: "Labor union songs" (sorry, none of those here), and "Donald Rumsfeld JFK assassination" (did Donald do something we don't know about?).

I filed a brief with the United States Supreme Court on Monday. It's an amicus brief in a case called Rogers Machinery v. City of Tigard, and it involves a Takings claim against a city that imposed a $37,000 "traffic impact fee" on a business that wanted to add an extra building for the employees it already had -- in other words, for a building that would not create any increased traffic at all. The case is just at the petition stage right now, so we'll see what happens. To read the brief, go here, and click on the link.

Howard Bashman prints a federal judge's email that refers to the "rule" against splitting infinitives. But, in fact, there is no such rule.

The Oxford English Dictionary made quite a splash in 1998 when they announced that there has never been any such rule. The idea that we shouldn't split infinitives began a couple of centuries ago when a very few fashionable writers thought that English should imitate Latin to the greatest extent possible -- and because Latin infinitives are single words (i.e., "amare" is "to love"), English should pretend that its infinitives are single words as well. Which means no splitting of infinitives.

But great English writers have always split infinitives wherever it seemed appropriate. Sometimes splitting infinitives is positively better and more clear. From a New York Times story:

Early in this century, such heavyweights as the linguist Otto Jespersen, the British lexicographer Henry Fowler and the American grammarian and philologist George Curme argued that splitting is not only acceptable but often preferable. Most 20th-century dictionaries and style guides agree that clarity is what counts. There's a difference, for instance, between "He learned to quickly read" and "He learned quickly to read." And when "quickly" comes at the end, it could refer to either the learning or the reading.

What won't come quickly, one suspects, is an end to the splitting headache. George Bernard Shaw, a perennial sufferer, once complained to The Times of London about an overzealous editor with a wooden ear: "There is a pedant on your staff who spends far too much of his time searching for split infinitives. Every good literary craftsman uses a split infinitive if he thinks the sense demands it. I call for this man's instant dismissal; it matters not whether he decides to quickly go or to go quickly or quickly to go. Go he must, and at once."

The Ninth Circuit has been asked to reconsider its Second Amendment ruling, while another California attorney says that ""Reinhardt is basically thumbing his nose at the Supreme Court and daring them to take the issue up at some future date."

A very interesting exchange between PBS's Gwen Ifill and Florida Senator Bob Graham:

GWEN IFILL: Senator Graham, are there elements in this report, which are classified that Americans should know about but can't?

SEN. BOB GRAHAM: Yes, going back to your question about what was the greatest surprise. I agree with what Senator Shelby said the degree to which agencies were not communicating was certainly a surprise but also I was surprised at the evidence that there were foreign governments involved in facilitating the activities of at least some of the terrorists in the United States.

I am stunned that we have not done a better job of pursuing that to determine if other terrorists received similar support and, even more important, if the infrastructure of a foreign government assisting terrorists still exists for the current generation of terrorists who are here planning the next plots.

To me that is an extremely significant issue and most of that information is classified, I think overly-classified. I believe the American people should know the extent of the challenge that we face in terms of foreign government involvement. That would motivate the government to take action.

GWEN IFILL: Are you suggesting that you are convinced that there was a state sponsor behind 9/11?

SEN. BOB GRAHAM: I think there is very compelling evidence that at least some of the terrorists were assisted not just in financing -- although that was part of it -- by a sovereign foreign government and that we have been derelict in our duty to track that down, make the further case, or find the evidence that would indicate that that is not true and we can look for other reasons why the terrorists were able to function so effectively in the United States.

GWEN IFILL: Do you think that will ever become public, which countries you're talking about?

SEN. BOB GRAHAM: It will become public at some point when it's turned over to the archives, but that's 20 or 30 years from now. And, we need to have this information now because it's relevant to the threat that the people of the United States are facing today.

I hope we aren't covering for the Saudis here . . . .

First Born Human Clone Expected Next Month
While many cloned human beings are known to have died before birth, the renegade Dr. Antinori claims that next month his will become the first clone born.

Dick Armey offers some parting thoughts on his congressional career, including these sentiments about Justice Thomas:

Mr. Armey explained that in one of his offices he ordered "big-shot" photos removed, because only two are worthy: Ronald Reagan and Clarence Thomas.

Mr. Armey's friendship with the much-maligned Supreme Court justice came by way of Mr. Thomas's wife, the former Ginny Lamp. She was a lobbyist with the U.S. Chamber of Commerce when Mr. Armey arrived in Washington in 1985. Together they successfully fought the push for a feminist economic theory called "comparable worth," under which a government panel—instead of the labor market—would set workers' wages. "Ginny was my pal," Mr. Armey says, "and she introduced me to Clarence."

In Clarence Thomas, Dick Armey saw another fighter. When the Senate Judiciary Committee took up Mr. Thomas's nomination to the Supreme Court, the official White House strategy was to play up the nominee's attractive biography, including his rise from a humble upbringing. His opponents' strategy was to hammer him with vulgar attacks based on evidence that did not stand up to scrutiny. The accusations were humiliating, but Mr. Thomas didn't break. He rejected his White House handlers' advice and went on the offensive himself; he tore into his opponents and said he was not going to be the passive victim of a "high-tech lynching."

"Who has seen such a moment of such personal courage and conviction larger than that in this town? Not I," Dick Armey said. "For me to have been able to sit and watch that example and experience all the emotions of fear, and hope, and awe, and respect, and then be able to say, 'That's my personal friend.' He gave me a gift of experience I don't think I'll ever see duplicated in my life. I will love him forever for the example he gave to me."
* * *
Mr. Armey next year will no longer have in his office lovely 19th-century landscape paintings on loan from the Smithsonian, but he does take satisfaction from having changed the American landscape. "We have stumbled a little bit," he said. "There are times we looked a little foolish. I guess I have been misrepresented in terms of my character, my intention more times than I like. But I've never suffered the way our Lord or Clarence Thomas suffered by falsehoods. I don't have much regret.... There's an old line from Willie Nelson, 'The highs outnumber the lows.' The blessings are too many to count."

So Bush plans to nominate two more judges to the D.C. Circuit (probably including Doug Kmiec), for a total of twelve judges there. As the Washington Post correctly notes, quite a few Republicans over the past few years strongly opposed having more than ten judges on that court, saying that there wasn't enough work to justify twelve judges. Democrats are crying foul at Bush's plans.

I think I'm going to have to side with the Democrats on this one, even though I like Doug Kmiec. Having clerked at the 6th Circuit and the D.C. Circuit, I would guess that the D.C. Circuit probably has about half the workload of the 6th Circuit. People will tell you that the D.C. Circuit has more complex cases than other circuits -- and this may be true in some regulatory areas. But the D.C. Circuit never has to deal with death penalty cases, which can be an enormous burden. (While at the 6th Circuit, I had to draft a 75-page opinion in a death penalty case where the parties had filed about 300 pages of briefs apiece and the record was several thousand pages. It was more than twice the amount of work that I did on any D.C. Circuit case.) Nor, for the most part, does the D.C. Circuit often have to deal with difficult subjects like ERISA (because most such cases arise when employees sue big companies, of which there are few if any in DC), or immigration law (these cases tend to come up mostly in the 9th Circuit), or tax law (again, not many large taxpayers in DC). So, I tend to think, like some Republican Senators and Judge Silberman of that very court, that the D.C. Circuit doesn't really need twelve judges.

The GOP's Clinton

I'm incensed that Lott won't step down. He should have said, "Our country must achieve equal justice for all Americans. I hold this principle in the highest regard. Unfortunately, my recent statements have led many to question my commitment to this ideal. I understand why people interpreted my words the way they did. I'm shamed every time I hear those words, uttered from my own lips. But those words do not reflect my values. I embrace the universal equality of all mankind, and am proud that America has come so far in moving toward her founding ideal. All men are created equal. America must continue to strive toward that promise. Though I will continue to work for this goal, my comments have lost me the confidence of too many people. I am therefore stepping down as majority leader of the United States Senate. America's principles are much more important to me than is my leadership post."

Even though I suspect/hope he's not a closet racist (or an out-of-the-closet racist) I am furious that he's willing to damage his party and principles to save his ego. During the Clinton scandal, I vowed to never support an official who sacrificed my principles to protect his political life. Well Trent, you're Clinton now.

For a little fun, check out this lawsuit filed against President Bush last week in Texas. (PDF document). I used to see wacky lawsuits like this when I was a clerk. There are some craaaazy people out there.

One more thing that I disliked about the Ninth Circuit's 2d Amendment decision. (I promise I'll quit posting on that decision after this; it's just that the opinion has so many errors to be debunked!)

First, a little background. Here's Reinhardt in a 1999 speech (available on LEXIS) giving his opinion of originalism:

To understand the Constitution, we must, as Justice Brennan told us, look at the entire history of its development and implementation. We must look at how it has been interpreted, as this society has changed and grown. Some of our Justices today would like to pretend that nothing legitimate has occurred in the area of constitutional understanding since the date the document was adopted. They believe they can find all the answers in originalist debates. That is simply not the case - even if it were possible to determine, from some of those cryptic exchanges, the founders' intent regarding problems of which they could never have conceived.

Pretty negative on originalism, wouldn't you say? But if you read the 2d Amendment decision, you find several dozen pages in which Reinhardt looks for (or pretends to look for) the original meaning and intent behind the 2d Amendment. What explains the difference?

Reinhardt actually explains his sudden change of heart regarding the validity of originalism. Here's what he says:

An examination of the historical context surrounding the enactment of the Second Amendment leaves us with little doubt that the proper reading of the amendment is that embodied in the collective rights model. We note at the outset that the interpretation of the Second Amendment lends itself particularly to historical analysis. The content of the amendment is restricted to a narrow, specific subject that is itself defined in narrow, specific terms. Only one other provision of the Bill of Rights is similarly composed -- the almost never-used Third Amendment. The other eight amendments all employ broad and general terms, such as "no law respecting" (the Free Exercise Clause), "unreasonable" (searches and seizures), "due process of law" (for deprivations of life, liberty, and property), "cruel and unusual" (punishments). Even the Ninth and Tenth Amendments speak vaguely of "other" rights or unenumerated "reserved" rights. The use of narrow, specific language of limited applicability renders the task of construing the Second Amendment somewhat different from that which we ordinarily undertake when we interpret the other portions of the Bill of Rights.

Well, isn't that convenient. Not to mention utterly bogus. I can't imagine why the terms "right of the people" or "shall not be infringed" (in the Second Amendment) are any less "broad and general" than other provisions in the Bill of Rights. On the other hand, terms like "establishment of religion" (First Amendment), or "no Warrants shall issue, but upon probable cause" (Fourth Amendment) or "presentment or indictment of a Grand Jury" (Fifth Amendment), are just as "narrow" and "specific" as any of the language in the Second Amendment.

Given the utter derision with which Reinhardt usually speaks of originalism, I'm not sure how he could write the above words (or indeed the entire decision) and expect to be taken seriously.

When Trent Lott ran for Majority Leader, we voted against him. We're proud of it.

For Republican readers who don't yet realize that Trent Lott must go, read Jonah's article. It's the best of the twenty columns on the subject. Then contact your Senator. Jacob Levy has a template letter you can use. Mine's simpler:

Dear Senator,

In election-year 2008, I want to say this about my state: When Trent Lott ran for Majority Leader, we voted against him. We're proud of it. And because the rest of the Senators followed our lead, our party didn't have all these problems over all these years, either.

I find it interesting to take a occasional look at the stats page to see who has visited this page recently. Among the last 20 visitors as I write were people from the Harvard-Smithsonian Center for Astrophysics and the University of Chicago; major law firms such as Arnold & Porter, Roper & Gray, and Mayer Brown; the Swiss Bank Corp.; and several governmental entities, including the Forest Service, the Department of Defense, the Department of Justice, the Administrative Office for the United States Courts, and (most intriguingly for me, given my last several posts), someone from the Ninth Circuit Court of Appeals (!). (Hello, Judge Reinhardt?)

Howard Bashman has two posts discussing my point that the 9th Circuit was acting improperly in striking down an exception to a criminal law. In the first, Howard argues that the California legislature would very likely have approved of the court's action, and that this minimizes the intrusion into the legislature's prerogatives. Moreover, he says, what about a murder law that has some exception that a court thinks is improper? Should the court really strike down the entire law against murder rather than eliminating the exception?

The second post quotes two emails that reference a famous New York case where a court considered a rape law that made an exception for spousal rape. The court there thought that the legislature would rather have the exception stricken than have the entire law invalidated. (I would suggest, however, that if the court had take the latter course, the legislature would have taken all of an hour or two to reenact the rape law without the exception.)

In any event, all this merely goes to show that sometimes legislatures would prefer that a court eliminate an exception rather than strike down the whole law. But we're not just talking about legislative preference here. There are two additional reasons not to strike down an exception: 1) It's not fair as to the people who relied on the exception; and 2) The court has no effective way of enforcing such a ruling, given the existence of prosecutorial discretion. Legislative preference has nothing to do with those arguments.

Let's talk about the reliance interest briefly. It would sound odd to suggest that men who "rely" on the exception for spousal rape deserve any respect for such reliance. And I don't intend to suggest that. At first thought, my instinct is to suggest that we look at the traditional distinction in criminal law between those acts that are bad in themselves (malum in se) and those that are bad only because prohibited (malum in prohibitum). (This assumes, of course, some sort of belief in natural law, as opposed to sheer positivism. But I think it's a safe assumption -- just about everyone believes in natural law in some form, no matter how indignantly they deny it.)

Murder and rape are bad in themselves. Merely owning a gun is not (it doesn't harm anyone in the slightest). People who commit certain types of murder or rape in reliance on some irrational legislative exception should know that what they are doing is wrong regardless, and they have no reliance interest that we need give much weight. This is manifestly not true as to the retired peace officer who buys a gun in reliance on the law saying to him, "You're exempt." He had no reason whatsoever to think that what he was doing was wrong in any sense, and it is grossly unfair to say to him, "You're a felon now, thanks to a just-issued 9th Circuit ruling."

I've mentioned two reasons why it is wrong for a court to strike down an exception to a criminal law:

1) It is unfair to people who relied on the exception and are now converted into felons.

2) It is beyond a court's authority to create crimes that the legislature didn't want to create.

Let me add a third reason: It is simply beyond the court's power to make such a ruling anyway. A normal injunction in a constitutional case orders the state not to apply a statute. A court can enforce this injunction by, say, contempt of court if the state goes ahead and applies the statute at any point in the future.

But an injunction against an exception is essentially ordering the state to positively undertake prosecutions of the people formerly excepted, here retired peace officers. And the court has no effective authority to issue such an injunction, or to ensure that is obeyed.

This is true not so much for doctrinal reasons, but for practical reasons. Prosecutors have prosecutorial discretion. If they don't happen to prosecute any retired peace officers, what is the Ninth Circuit going to do about it? Nothing, that's what. There's nothing that it can do. Which is why issuing such injunctions is not appropriate.

One more huge problem with the Ninth Circuit's decision -- and it has nothing to do with the Second Amendment. It has to do with the court's handling of the law's exception for retired peace officers. (You can find the court's discussion at pages 64 through 68 of the opinion.)

The ban on assault weapons made an exception for sales to peace officers on their retirement. The court said that allowing such sales was entirely contrary to the legislative purpose for the weapons ban, and that the exception further had no conceivable rational purpose. Thus, the exception failed even the most lenient constitutional test -- the "rational basis" test under the Equal Protection Clause.

The court then noted that the law had a "severability" provision. (This is a provision that says if a court thinks one section of the statute is unconstitutional, it should "sever" that section -- i.e., just strike down that section rather than the whole statute.) Thus, because the exception is an "arbitrary classification," the court would sever it and strike it down.

But wait. The court purported to sever an exception to a criminal law. Thus, retired peace officers who bought weapons in reliance on that exception were immediately converted into felons by the court's judgment. Moreover, the court extended criminal liability to a group of people that the legislature thought shouldn't be deemed criminals. That intrudes into the prerogatives of the legislature.

As one might expect, there is much precedent saying that a court cannot sever an exception to a criminal statute. See DONALD T. KRAMER, 16 AM.JUR.2D CONSTITUTIONAL LAW § 218 (2000) (citing numerous cases). Here are some cases:

• The Supreme Court has said that when an “excepting proviso is found unconstitutional the substantive provisions which it qualifies cannot stand,” for “to hold otherwise would be to extend the scope of the law . . . so as to embrace [situations] which the legislature passing the statute had, by its very terms, expressly excluded.” Frost v. Corporation Comm'n of Okla., 278 U.S. 515, 525 (1929).
  
  
• Davis v. Wallace, 257 U.S. 478, 484 (1922) (“Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted, and which it was intended to qualify or restrain.”).
  
  
• Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565 (1902) (holding that an unconstitutional exception could not be severed).
  
  
• In cases involving content discriminatory statutes or discriminatory taxes -- i.e., where a legislature unfairly discriminates by making exceptions for certain speakers or taxpayers -- the Supreme Court typically invalidates the statute wholesale rather than severing the exception so as to subject more individuals to criminal liability or taxation. See, e.g., Carey v. Brown, 447 U.S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987); Armco, Inc. v. Hardesty, 467 U.S. 638 (1984).
  
  
• When the Third Circuit faced a case involving a sign ordinance with content-based exceptions, it addressed the severability question thus: “Eliminating the offending exception would mean that we would be requiring the State to restrict more speech than it currently does. All existing restrictions would apply, plus there would be a restriction on signs advertising local industries and meetings. To our knowledge, no court has ever mandated issuance of an injunction such as that, and we decline to be the first.” Rappa v. New Castle County, 18 F.3d 1043, 1072-73 (3d Cir. 1994).
  
  
• Brown v. Scott, 602 F.2d 791, 795 n.6 (7th Cir. 1979) (holding that a “labor dispute exception is not severable from the remainder of the statute because its excision would subject a group of persons to criminal sanctions that the Illinois General Assembly did not intend to subject to those sanctions . . . .”).
  
  
• Kendall-Jackson Winery, LTD v. Branson, 82 F. Supp.2d 844, 868 (N.D. Ill. 2000) (holding that enforcing “an Act without an invalid exemption limiting the scope of its application would, in effect, create a new law. . . . This would amount to a delegation of legislative powers to the courts, which is contrary to article III of the constitution . . . .”) (internal quotes and citations omitted).
  
  
• American Booksellers Ass’n, Inc. v. Webb, 654 F. Supp. 503, 504 (N.D. Ga. 1987) (noting the “general rule providing that where, as here, an exception to a criminal statute is invalid, the entire criminal statute must be struck. . . . The reason for this is simple: by enacting an exception, a legislature manifests an intent to exempt a protected class from criminal liability”).

So what should the court have done? This may sound like tough medicine, but when a court thinks that a legislature made an unconstitutional exception to a criminal statute, it has to strike down the whole statute and let the legislature start over. There is simply no basis for a court unilaterally extending criminal liability by striking down an exception to a criminal law.

And as for the retired peace officers, if any of them should be prosecuted following the Ninth Circuit's decision, I would think they would have an excellent Due Process defense.

NOTE: I should point out that I cut-and-pasted some citations I previously collected for a pro bono brief. I don't have time to do this level of legal research for a blog posting!

UPDATE: Nice to see that Eugene and one of his co-bloggers Orin Kerr generally agree.

More on John Adams and guns

My friend Tom West, who teaches politics at the University of Dallas, emails with the text of a letter by John Adams, in which Adams lists the four "institutions" that were most important to the success of the Revolution:

The four institutions
intended are:—

1. The towns or districts.

2. The congregations.

3. The schools.

4. The militia.

Adams then defines the four. Here's how he defines the militia:

4. The militia comprehends the whole people. By virtue of the laws of the country, every male inhabitant between sixteen and sixty years of age, is enrolled in a company, and a regiment of militia completely organized with all its officers. He is enjoined to keep always in his house, and at his own expense, a firelock in good order, a powder horn, a pound of powder, twelve flints, four-and-twenty balls of lead, a cartridge box, and a knapsack; so that the whole country is ready to march for its own defence upon the first signal of alarm. These companies and regiments are obliged to assemble at certain times in every year, under the orders of their officers, for the inspection of their arms and ammunition, and to perform their exercises and manoeuvres.

Behold, sir, a little sketch of the four principal sources of that prudence in council and that military valor and ability, which have produced the American Revolution, and which I hope will be sacredly preserved as the foundations of the liberty, happiness, and prosperity of the people.

[Adams, Works, ed. Charles F. Adams (Boston: Little, Brown, 1860), 5:495-6.]

As Tom West puts it, "Note that Adams's idea of gun control is an unfunded mandate that each adult male own a gun and ammo."

Reinhardt's depiction of Adams is looking more and more incomplete.

Another instance of intellectual dishonesty in the recent 9th Circuit decision interpreting the Second Amendment. At one point, Reinhardt purports to demonstrate that some of the Founders "explicitly disparaged the idea of creating an individual right to personal arms." He then provides one quote (!):

For instance, in a highly influential treatise, John Adams ridiculed the concept of such a right, asserting that the general availability of arms would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government." 3 John Adams, A Defence of the Constitutions of Government of the United States 475 (1787-1788)

But let's look at what the full quote from Adams actually says:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

In other words, Adams was not arguing against an individual right to have arms. In fact, as the highlighted text above shows, he supported allowing private citizens, at their individual discretion, to use arms in "private self-defense." What he was writing about here was the necessity of legal control over the militia -- in other words, he didn't want to have a bunch of vigilantes running around purporting to be a military.

I'm not sure how anyone can suggest that Adams opposed any individual right to have arms -- much less that this carefully edited quote was representative of the general attitude of the Founders.

Static electricity a danger at the gas pumps? I got an article by email warning of this danger, but thought it was probably one of those urban legends. Turns out it's true.

Instapundit's Moral Hazard

Responding to the news that one of the prosecutors of the Central Park Joggers thinks the teenage gangsters are innocent of the rape and beating, Instapundit proposes that innocents who are wrongly sent to prison receive $1 million per year to compensate them for the miscarriage of justice. Setting aside the question of whether these particular convicts are innocent, is a jackpot-for-time-served policy wise?

One of the key premises undergirding the American adversarial justice system is that the parties are fully motivated to win. The truth is expected to arise as both sides present evidence and witnesses and challenge the evidence and witnesses of their opponents. But promising to pay the accused $1 million per year if they lose removes some of their desire to win. The incentive for many people would be significant, and for some people it would be overwhelming. O Henry wrote a story, The Cop and the Anthem, about an indigent man who commits a petty crime every December in order to spend the winter in a warm jail with three meals a day. Add to the calculus $1 million per year, and it's conceivable that others might be willing to join him in the cells. I have a good job, but I would entertain the thought of going to jail for 12 months for $1 million.

Even if the ex ante incentive isn't a concern, as in the case of the Central Park Jogger convicts, our moral duty to compensate arises only for those defendents that maintain their innocence throughout the investigation and prosecution. I don't have much sympathy for innocents who, with their parents present, confess to a crime, claim to have intimate knowledge of what happened, and lead investigators to the scene.

Is global warming a good thing? This guy says so.

I don't mean to pick on Tribe, though. He himself made an admirable showing with the latest edition of his treatise, in which he came to the conclusion that the 2d Amendment does indeed provide at least some protection for an individual right to bear arms. This is certainly not where his political preferences lie, and he received a tremendous amount of criticism for announcing that conclusion -- politically-based criticism, by the way.

I came across an old C.S. Lewis essay called "On Living in an Atomic Age." With references to the atomic bomb replaced by references to terrorism, here is the opening passage:

In one way we think a great deal too much of terrorism. "How are we to live in the age of terrorism?" I am tempted to reply: "Why, as you would have lived in the sixteenth century when the plague visited London almost every year, or as you would have lived in a Viking age when raiders from Scandinavia might land and cut your throat any night; or indeed, as you are already living in an age of cancer, an age of syphilis, an age of paralysis, an age of air raids, an age of railway accidents, an age of motor accidents."

In other words, do not let us begin by exaggerating the novelty of our situation. Believe me, dear sir or madam, you and all whom you love were already sentenced to death before September 11, and quite a high percentage of us were going to die in unpleasant ways. We had, indeed, one very great advantage over our ancestors -- anesthetics; but we have that still. It is perfectly ridiculous to go about whimpering and drawing long faces because terrorists have added one more chance of painful and premature death to a world which already bristled with such chances and in which death itself was not a chance at all, but a certainty.

This is the first point to be made: and the first action to be taken is to pull ourselves together. If we are all going to be destroyed by terrorism, let the terrorists when they come find us doing sensible and human things --- praying, working, teaching, reading, listening to music, bathing the children, playing tennis, chatting to our friends over a pint and a game of darts --- not huddled together like frightened sheep and thinking about terrorism. They may break our bodies (a microbe can do that) but they need not dominate our minds.