The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

We're 15


Our first day blogging (as the Volokh Brothers, and with a format borrowed from InstaPundit, who inspired us to blog) was Wednesday, April 10, 2002. Here are a few posts from the first week:

[Sasha:] PINKOS AND PISTOLS: The article about my gun club has indeed appeared in The Economist. The story mentions the Pink Pistols (a gay pro-gun group—motto: 'Armed gays don't get bashed'), Jews for the Preservation of Firearms Ownership, the Tenth Cavalry Gun Club (not in the article, but check out Kenneth V.F. Blanchard's main web site,!), the Mt. Holyoke Second Amendment Sisters, the Maryland Institute College of Art Gun Club, the Armed Pagans, and, of course, my own Harvard Law School Target Shooting Club. The piece is 'premium content' on the Economist web site, so you have to pay the big bucks to read it online, so you'd better buy it in print. (It's the best news source there is, so it'll be worth all 450 pennies.) But here's a short (fair-use!) excerpt:

The Harvard Law School is arguably the command centre of American liberalism. But the school's gun club boasts some 120 members, 5% of the student body. Alexander Volokh, who founded the club late last year, takes members shooting on a range in New Hampshire. Guns are banned on the Harvard campus; the New Hampshire range displays a sign saying 'Children under 13 shoot for free.' Mr Volokh plans to hold a wide range of gun-themed events on campus, including screenings of films which feature 'regular people using guns as a force for good.' Another student wrote an article in the Harvard Law Record entitled 'Discovering the Joy of a Semi-Automatic'….

Mr Volokh points out that enthusiasm for guns is a form of counter-cultural rebellion, rather like smoking cigars.

A hugely sympathetic article, despite The Economist's pro-gun control editorial position.

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[Eugene:] TAKE A FRIEND TARGET-SHOOTING DAY: I took some students to the shooting range Tuesday, and everyone seemed to much enjoy it. (The Public Interest Law Foundation here at UCLA Law puts on an auction each year to raise funds for scholarships; they usually auction off items or events contributed by professors, and each year I contribute pizza, safety training, and target-shooting for four.) The students were one man, who had shot before, and three women, who had virtually no shooting experience. Oddly, the gender balance was exactly the same as in the preceding two or three years that I'd done this.

I like to do this sort of thing for a variety of reasons (among other things, I have fun and so do most of the people I take), but here are three in particular: First, all people, regardless of their views on gun control, should know how to shoot a gun, and of course how to handle one safely. I hope I'll never have to use a gun outside a shooting range—but who knows? And it's better to know and not need to use the knowledge, than to need to use the knowledge and not know.

Second, guns, like other deadly devices (such as cars) arouse both rational concern and irrational concern. I'm generally skeptical about gun control proposals—"if guns are outlawed, only outlaws will have guns" is an oversimplification, but there's a lot of truth it—but I've certainly heard lots of thoughtful, sensible arguments against private gun ownership. Unfortunately, I think that at least some anti-gun sentiment comes not from rational analysis, but from visceral hostility, and unfamiliarity is a great source of visceral hostility. Personal experience with a gun—seeing it as a tool, albeit one that when misused can cause grave harm—can help focus people on the substance, rather than the fear or the symbolism.

Third, sometimes (not always, but sometimes) hostility to guns also comes from hostility to gun owners. I remember seeing a photo posted on a colleague's door, showing a fat guy shooting a rifle; the colleague had written over the man's T-shirt, "No gun control or belly control." There was no rational political argument here—just contempt for "rednecks," "gun freaks," "those people." (The colleague, incidentally, was otherwise a very pleasant, affable, thoughtful fellow.)

The gay rights movement was, I think, quite right to urge gays to come out of the closet and thus show people that gays aren't just "those weirdos in San Francisco"—they can be your coworkers, friends, even family members, normal, decent people. It's likewise helpful to communicate, though politely and with a smile, "We're here, we're gun owners, get used to it."

So a suggestion: If you know something about guns, and live in a non-gun-culture environment (like mine here on the Westside of L.A.), ask some friends to the range. If you're a woman, all the more reason to do that. (On the other hand, if you have a reputation, however unfairly earned, as someone who's, er, a bit odd, maybe you'd better not.) You'll have fun. They'll have fun. And as with all new experiences, people might subtly and indirectly learn something valuable.

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[Eugene:] IS BUYING A BOOK MORE PROTECTED THAN MAKING A STATEMENT? Early this week, the Colorado Supreme Court held that the government generally may not search a bookseller's customer records. Such a search would still be theoretically possible, but only if the government "demonstrate[s] a compelling governmental need for the specific customer purchase records that they seek"—a standard borrowed from "strict scrutiny," pretty much the most demanding test in constitutional law.

The Colorado Supreme Court's justification made a lot of sense, at one level:

When a person buys a book at a bookstore, he engages in activity protected by the First Amendment because he is exercising his right to read and receive ideas and information. Any governmental action that interferes with the willingness of customers to purchase books, or booksellers to sell books, thus implicates First Amendment concerns. Anonymity is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of identity.

Indeed, the risk that the government will find out what you're reading may well deter you from reading controversial things.

But while this sounds fairly appealing (I'm generally quite a free speech maximalist), I wonder how booksellers' records about who bought which books differs from any witness's testimony about who said certain things to him. Say that the government (or a private plaintiff) is investigating whether a defendant had a certain motive—for instance, hatred of a defendant, racial animus, loathing of abortion providers, a desire to aid the enemy in time of war, and so on; and say that this investigation leads to a witness being asked, under oath, "Did the defendant ever talked to you about how he thought [the victim / blacks / abortion providers / Allied soldiers] deserved to die?"

Under the Colorado Supreme Court's reasoning, a defendant could demand that this evidence be excluded—at least unless strict scrutiny were passed—using the following argument:

When a person [talks to a friend or acquaintance], he engages in activity protected by the First Amendment because he is exercising his right to [communicate] and receive ideas and information. Any governmental action that interferes with the willingness of [people] to [talk freedly with other people] thus implicates First Amendment concerns. [Confidentiality] is often essential to the successful and uninhibited exercise of First Amendment rights, precisely because of the chilling effects that can result from disclosure of [discussions].

This argument, it seems to me, is exactly analogous to what the Colorado Supreme Court said as to bookstores (and surely my right to speak is just as protected as my right to buy books). But I'm quite sure that the Colorado Supreme Court isn't prepared to accept it. And it's easy to anticipate the court's explanation for why people can be required to testify about what a defendant told them: There's no doubt that the risk of one's statements being disclosed does in some situations deter people from speaking—but for good reason, we take the view that the legal system is entitled to gather evidence, both about what people do and say. Such coercive evidence-gathering is something of an indirect burden on free speech (and on other activity), but one that seems to be justified, though regrettable. Why isn't the same logic equally applicable to bookstore records?

What's really going on here, I fear, is a replay of the argument that some businesses or professions are entitled to special First Amendment privileges: that reporters are entitled to a special "reporter's privilege" that others don't deserve, that the media is entitled to spend money endorsing candidates while others can be denied this right, and now that bookstores can protect their records but ordinary people must turn over the information that they possess. The U.S. Supreme Court has generally rejected the notion that the First Amendment provides such preferential treatment for some speakers over others—and I think it has been right to do so.

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[Eugene:] ETYMOLOGY. Little-known fact: The word "politics" comes from the prefix "poly-," meaning "many," and the root "ticks," meaning "bloodsucking insects."

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I just ran across a Conrad editorial cartoon from the L.A. Times: An American Indian is carrying a sign that says "Deport Illegal Immigrants." This, I assume, is meant to suggest that it's hypocritical for white Americans to oppose illegal immigration since America was, well, stolen from the Indians.

I think, though, that the cartoon illustrates the exact opposite. The whites immigrated to America—and took over the place. (I'm glad they did, but I can surely understand why the Indians might disagree.) Likewise, Jews immigrated to Palestine—and eventually there were more Jews in some parts than Arabs, so Jews started running the place. Now Israelis are sensibly objecting to Palestinians' asserted "right of return" to their and their parents' homes, because if enough Palestinians are allowed to immigrate into Israel, they'll start running the place.

The bottom line is that for all the good that immigration can do (and I'm a first-generation immigration to the U.S., who is very glad that America let me in, and who generally supports immigration), unregulated immigration can dramatically change the nature of the target society. It makes a lot of sense for those who live there to think hard about how those changes can be managed, and in some situations to restrict the flow of immigrants—who, after all, will soon be entitled to affect their new countrymen's rights and lives, through the vote if not through force.

I sometimes pose for my liberal friends a stylized thought experiment. Say that they live in a country of 3 million people (the size of New Zealand) where 55% of the citizens are pro-choice and 45% are pro-life (1.65 million vs. 1.35 million). Now the country is facing an influx of 1 million devoutly Catholic immigrants, who are 90% pro-life. If these immigrants are let in and become citizens, the balance will flip to 2.25 million pro-life to 1.75 million pro-choice (56% to 44% pro-choice); and what my friends might see as their fundamental human right to abortion may well vanish, in a perfectly peaceful, democratic way. It's unlikely that any constitutional protection will stand in the way: Even constitutions can be amended, and new judges can be appointed. Nor can one rely on "education" or "assimilation"—what if the immigrants simply conclude that their views on abortion are just better than the domestic majority's? I think many of the current residents may rightly say "We have nothing against Catholics; but we don't want our rights changed by the arrival of people who have a different perspective on the world than we do."

Letting in immigrants means letting in your future rulers. It may be selfish to worry about that, but it's foolish not to. For America today, that's actually not that much of a concern, because we're a huge nation whose culture is already so mixed (for which I'm grateful) that even millions of immigrants won't affect it all that greatly, at least for quite a while. But for many smaller and more homogeneous countries, extra immigration means a fundamental change in what the country is all about, and perhaps what the citizens' lives and liberties will be like. It's neither racist nor hypocritical to worry about that.

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[Eugene:] SONG LYRIC FOR THE DAY. "You told me again you preferred handsome men / But for me you would make an exception." Leonard Cohen, "Chelsea Hotel, No. 2."
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WORSE THAN INTERNET ADDICTION. The latest cyber-op-ed from yours truly. Trust me, this thing is very dangerous.