Author Archives: Michael Froomkin

Interesting debate at the Volokh conspiracy between David Kopel, New Orleans Gun Confiscation is Blatantly Illegal, and Orin Kerr, Response to David Kopel. Kopel’s original post has an update to respond to Kerr, who has a further post of his own.

I claim no relevant expertise, but in the past I have found Prof. Kerr’s work on statutory interpretation to be of the highest quality (we part company sometimes on constitutional interpretation). As for Kopel, well, Kopel’s approval of shooting New Orleans ‘looters’ is a view that justly revolts reasonable people. Of course the demerits of a speaker don’t necessarily reflect on his cause.

Personally, I do not think private ownership of guns has on balance proved to be a social good, espeicially in urban areas, but I recognize that the Second Amendment protects them (up to a point, whose exact extent I remain uncertain about) whatever I may think. More generally, if we’re going to argue for expansive constructions of other parts of the Bill of Rights — and I sure am — I think the Second Amendment gets to come along for the ride. Thus, although my knee jerks that the confiscations are suspect, I wouldn’t be at all surprised if a court would side with Prof. Kerr.

It seems that if you curse at the acting President who is doing a media circus near your destroyed Louisiana home, you get this treatment:

As they were salvaging a few things from Marble’s home, two military police waving M-16’s showed up and said they were looking for someone who fit Marble’s description who had cursed at Cheney.

“I told them I was probably the person they were looking for, and so they put me in handcuffs and ‘detained’ me for about 20 minutes or so,” Marble wrote. “My right thumb went numb because the cuffs were on so tight, but they were fairly courteous and eventually released me after getting all my contact info. They said I had NOT broken any laws so I was free to go.”

So let’s get this straight: A physician with a newborn baby loses most everything he owns in the hurricane, does what most of us WANT to do and “echoes” Cheney’s words he spoke on the Senate floor last year, walks away harmlessly, mission accomplished, and then once the media cameras leave, he is treated like a foreign terrorist as Cheney’s goons waving M-16s handcuff him in front of his destroyed home?

Bottom line: in a really totalitarian country, they lock you up in an asylum for this, drug you, throw away the key. We just handcuff you and try to intimidate you a little. So we’ve still got a way to go. But it’s another little tiny step towards authoritarianism, at least. (“It is
seldom that any freedom is lost all at once.” – Hume)

I can see why the secret service might want to interview anyone who shouts obscenities at someone they have to protect; who knows, maybe the next step is a brick, or worse. That part doesn’t bother me at all. But I don’t get the handcuffs for exercising your First Amendment rights. Not at all.

Related post, sadly prescient: America Needs You, Harry Truman.