Topic: Law and Civil Liberties

Liberty Tavern? Not So Much

When it opened in 2007, the Liberty Tavern became an instant hit among libertarians in the Clarendon neighborhood of Arlington, Virginia, of which there are quite a few, given the proximity of the Institute for Humane Studies, Mercatus Center, Institute for Justice, and Atlas Foundation. Now, however, the Liberty Tavern has sadly failed its inspiring name. Barista/bartender/blogger and former Cato colleague Jacob Grier explains:

Virginia Governor Tim Kaine is predictably pushing once again for a comprehensive statewide smoking ban. Not so predictably, he’s teamed up with the owners of Clarendon’s Liberty Tavern to launch his campaign:

This year, he believes momentum is on his side. At a news conference Tuesday at a Clarendon tavern, Kaine said the public is increasingly supportive of such bans…

Stephen Fedorchak, owner of The Liberty Tavern, the restaurant where Kaine held his news conference, said he has been in the business long enough to know smoking was once entrenched in bars and restaurants. But those days have passed, he said.

He said he does not regret the decision to ban smoking in his restaurant and said these days “smokers are somewhat used to going out in a … fresh-air environment” and no longer assume they will be allowed to light up.

Fedorchak is happy to be running a smoke-free restaurant. So why does he want the state to force all the bars and restaurants in Virginia to follow the same policy? Why not allow owners and customers a choice? Maybe some people like to smoke at a bar or a restaurant. I don’t, and I prefer to patronize smoke-free establishments. But I don’t feel the need to force my preferences on everyone else by law.

Let’s hope The Liberty Tavern will renounce its support for nanny-state authoritarianism and once again be worthy of its Revolutionary name.

Senator Hatch Gets Less than a Mess of Pottage

With an expanded Democratic majority in Congress, Democrats are pushing to get the District of Columbia a vote in the House of Representatives, instead of the nonvoting delegate that the District has, like Puerto Rico, Guam, American Samoa, and the Virgin Islands. They have one powerful Republican ally, Sen. Orrin Hatch of Utah, former chairman of the Judiciary Committee. He’s introducing the bill in the Senate along with Joe Lieberman.

Now Senator Hatch is a great constitutionalist. On his official website he writes

Adhering strictly to the Constitution and the system of government our Founders outlined is the best guarantee of the freedoms we cherish as Americans. We need legislators, judges, and citizens who understand the view of the Constitution envisioned by our Founding Fathers… .

Our Constitution is an inspired document that has preserved the unity of our nation, protected the rights of its citizens, and made America a beacon of freedom and prosperity for the world. I consider my pledge to defend the Constitution, and all that it stands for, to be among my most sacred duties.

But that poses a bit of a problem for his position on D.C. voting rights in Congress. Article I, Section 2, of the Constitution begins, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” The District of Columbia is not a state, and so it is not eligible to elect a member of the House of Representatives. Some constitutional issues are complicated. This one is not. States are represented in the House, and the District is not a state.

So why is Sen. Hatch (R-Utah) willing to ignore the clear language of the Constitution in order to give the District of Columbia a vote in the House of Representatives? Because he’s made a political deal that would also give Utah another seat in Congress. That way, you see, the Democrats get another vote from the District, and the Republicans would likely pick up a new Utah seat. The excuse for this deal is that Utah narrowly lost a fourth seat in the 2000 redistricting, arguably because the Census Bureau excludes overseas missionaries from a state’s apportionment count. Utah produces lots of Mormon missionaries. So Congress would increase the number of seats in the House to 437, with the additional seats temporarily assigned to D.C. and Utah.

So this bill is blatantly unconstitutional. And what is Senator Hatch (along with Sen. Robert Bennett and the rest of the Utah delegation, except for new Rep. Jason Chaffetz) getting for this corrupt bargain? Another vote in the House of Representatives for two years. The bill would allow Utah and D.C. to elect representatives to the 112th Congress in November 2010. But Utah’s population growth almost certainly will result in its getting a fourth seat in the 2010 census anyway, so in the regular order of things it would have four seats in the 113th Congress elected in 2012. That means that all this whistling past the Constitution on the part of Utah’s members of Congress is to get one more vote for two years. Meanwhile, of course, the unconstitutional vote for the District of Columbia would be permanent.

It reminds me of the wonderful line from A Man for All Seasons when Sir Thomas More, thinking his friend Richard Rich has sold out his honor for very little, asks him (alluding to Matthew 16:26): “It profits a man nothing to give his soul for the whole world. But for Wales?”

Senator Hatch and the state of Utah would trade the Constitution for one vote out of 437 for two years.

Cato Unbound on Controlling Terror

This month’s Cato Unbound began yesterday, with a fascinating title and topic: Keep Calm and Carry On: How to Talk about Terrorism.

The term is trite, perhaps, but terrorism is handily described as a form of psychological warfare. It’s a wonder, then, that more time and attention hasn’t been paid in official Washington to communications strategies pertaining to terrorism.

People elsewhere have been giving it focus, and the author of the lead article is Bill Burns, a research scientist at Decision Research and consultant at the Center for Risk and Economic Analysis of Terrorism Events. His piece is called “The Path Well Taken: Making the Right Decisions about Risks from Terrorism.”

You are hereby assigned it as reading, but here’s an inspiring quote from Burns’ closing paragraph:

America may yet offer the voice of calm and deliberative action to a world as shaken as we. And through these travails, we must lead by example, inspired by our constitutional freedoms and drawing from the best of our science and culture.

Watch for follow-on commentaries by Bernard Finel (January 7), John Mueller (January 9), and Camille Pecastaing (January 12).

Burns is a speaker, and this topic will be one of the subjects, at Cato’s two-day conference on counterterrorism strategy which begins on Monday next week. Read more and register here.

No Vacancies on the Supreme Court, but a New “Tenth Justice”

The selection of Harvard Law School Dean Elana Kagan to be the next solicitor general (and the first woman nominated for a position known as the “Tenth Justice”) is not at all surprising.  While President-elect Obama is under great pressure to nominate more women for cabinet and judicial positions, in Kagan and former Stanford Law School Dean Kathleen Sullivan he had two highly credentialed candidates who would have been front-runners regardless of their gender.  Two things we know about Kagan is that she is very smart – even before the Supreme Court clerkship and record of scholarship, she won a Sachs Scholarship, sometimes called a “Princeton Rhodes” – and has done a fabulous job as dean (including poaching star professors from law schools across the country).  While the White House and Attorney General will, of course, be setting the administration’s legal policy, we can expect Kagan to defend those policy positions ferociously and expertly.  Whether those efforts will coincide with a defense of the individual liberty and limited government encapsulated in the Constitution remains to be seen.

Brady Campaign Suing to Block Concealed Carry in National Parks

As I noted before, the Department of the Interior recently announced that it will allow the concealed carry of handguns in national parks and wildlife refuges. New West reports that the Brady Campaign is now suing to block implementation of the rule. (H/T to David Hardy at Of Arms & the Law.) The Brady Campaign claims that the rule will allow concealed carry on the National Mall just in time for inauguration. Not true. 

The full complaint is available here (pdf), where the claim about National Mall carry is repeated. Scroll down to pages 19-20, where one of the Brady plaintiffs alleges harm from the new rule because he lives in Maryland and visits the National Mall, where he may feel threatened by the prospect of concealed weapons.

Actually, the rule only allows carry “if, and only if, the individual is authorized to carry a concealed weapon under state law in the state in which the national park or refuge is located.” D.C. officials recently ramped up requirements for a gun permit, and a gun permit does not permit concealed carry outside the home. D.C. Police Chief Cathy Lanier made it explicitly clear that “[w]e have no plan to expand those laws to allow people to carry handguns in public.” 

The Department of the Interior’s rulemaking came in the wake of the landmark case District of Columbia v. Heller, which overturned the District’s long-standing gun ban. The Heller case is detailed in Brian Doherty’s new book Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment. The Cato book forum is available in video and podcast formats here.

Fort Dix Five Convicted

In case you missed it, five foreign-born defendants have been convicted of conspiring to kill American soldiers at Fort Dix, NJ, a site often used to train up reservists for deployment to Iraq. These guys are essentially terrorist wannabes, but they did have some weapons training and may have perpetrated an attack if left to their own devices.  

While the government made the effort to try some aspiring terrorists, it has bungled the prosecution of Ali al-Marri, an exchange student and alleged sleeper agent for Al Qaeda. The government moved him to military custody at the naval brig in Charleston, SC. Then the government asked the presiding judge to dismiss the charges against al-Marri with prejudice, meaning that they cannot be re-filed if he moves back to civilian custody. That was a very peculiar thing for the government to do and may end up wasting good police and intelligence work. 

The Fourth Circuit held that he can be held as an enemy combatant, but the Supreme Court granted certiorari and is slated to hear arguments in March. 

For more on the future of counterterrorism policy, check out Cato’s upcoming conference. This is part of a three-year project on counterterrorism and civil liberties.

Great Moments in Local Government

This story probably has a deeper meaning for those concerned about a hyper-sensitive society. It also probably raises the hackles of those trying to protect 2nd Amendment rights. But my immediate reaction was that only government could do something as stupid as arrest a 10-year old boy for having a toy cap gun:

The latest case of zero-tolerance at the public schools has a 10-year-old student sadder and wiser, and facing expulsion and long-term juvenile detention. And it has his mother worried that his punishment has already been harsher than the offense demands. “I think I shouldn’t have brought a gun to school in the first place,” said the student, Alandis Ford, sitting at home Thursday night with his mother, Tosha Ford, at his side. Alandis’ gun was a “cap gun,” a toy cowboy six-shooter that his mother bought for him. “We got it from Wal-Mart for $5.96,” Tosha Ford said, “in the toy section right next to the cowboy hats. That’s what he wanted because it was just like the ones he was studying for the Civil War” in his fifth-grade class at Fairview Elementary School. …Tosha said that Wednesday afternoon, after school, “six police officers actually rushed into the door” of their home. “He [Alandis] opened the door because they’re police. And then they just kind of pushed him out of the way, and asked him, ‘Well where’s the gun, where’s the real gun?’ And they called him a liar… they booked him, and they fingerprinted him.” …Alandis was charged with possessing a weapon on school property and with terroristic acts and threats. …Sherri Viniard, the Director of Public Relations for the Newton County School System, emailed a statement to 11Alive News Thursday that reads, in part: “Student safety is our primary concern, and although this was a toy gun, it is still a very serious offense and it is a violation of school rules. We will not tolerate weapons of any kind on school property.” Alandis had his first hearing in juvenile court on Thursday. Tosha said the case worker assigned to Alandis will recommend a period of probation, rather than juvenile detention. The judge will make the final decision. Tosha said Alandis is not allowed back in school for now. She has a meeting scheduled with school administrators. She does not know if he will be expelled, and is hoping for no more than a ten-day suspension.