President Obama has offered an opinion on the fate of Representative Charlie Rangel of New York. Recently, the House Ethics Committee charged Rangel with 13 violations.

During an interview with CBS News, President Obama seems to argue that Rangel should hang up his hat:

I think Charlie Rangel served a very long time and served — his constituents very well. But these — allegations are very troubling. . . .

And he’ll — he’s somebody who’s at the end of his career. Eighty years old. I’m sure that — what he wants is to be able to — end his career with dignity. And my hope is that — it happens.

Obama’s comments come as some media reports speculate that Rangel will survive the storm. While other commentators have argued that an ethics trial could harm Democrats, it is unclear whether Rangel’s situation would actually have national implications. Obama’s comments, ironically, will probably bring more attention to the situation and make it an issue that more likely implicates the reputation of the Democratic Party.

Will Rangel heed Obama’s “advice”? According to Ben Smith of Politico, Rangel is unfazed by Obama’s statement. Quoting an anonymous source, Smith reports that Rangel “doesn’t give a damn about what the president thinks about this.”

President Obama has offered an opinion on the fate of Representative Charlie Rangel of New York. Recently, the House Ethics Committee charged Rangel with 13 violations.

During an interview with CBS News, President Obama seems to argue that Rangel should hang up his hat:

I think Charlie Rangel served a very long time and served — his constituents very well. But these — allegations are very troubling. . . .

And he’ll — he’s somebody who’s at the end of his career. Eighty years old. I’m sure that — what he wants is to be able to — end his career with dignity. And my hope is that — it happens.

Obama’s comments come as some media reports speculate that Rangel will survive the storm. While other commentators have argued that an ethics trial could harm Democrats, it is unclear whether Rangel’s situation would actually have national implications. Obama’s comments, ironically, will probably bring more attention to the situation and make it an issue that more likely implicates the reputation of the Democratic Party.

Will Rangel heed Obama’s “advice”? According to Ben Smith of Politico, Rangel is unfazed by Obama’s statement. Quoting an anonymous source, Smith reports that Rangel “doesn’t give a damn about what the president thinks about this.”

A day after Shirley Sherrod announced her intent to sue blogger Andrew Breitbart, Breitbart has offered to meet with her privately. During an interview with Newsweek, Breitbart says that “This thing has gotten to a place that’s far beyond where it should be.” Breitbart then said he would like to discuss the matter privately with Sherrod :

[Breitbart] I’d be more than happy to meet with her in private and have a discussion with her.

[Interviewer] Is that an invitation?

[Breitbart] Sure, I’ll go whoever she wants. I’ll go to Albany, Ga. I’ll go anywhere to have a private discussion with her.

Although stranger things have happened, I seriously doubt that this “beer summit” will take place.

A day after Shirley Sherrod announced her intent to sue blogger Andrew Breitbart, Breitbart has offered to meet with her privately. During an interview with Newsweek, Breitbart says that “This thing has gotten to a place that’s far beyond where it should be.” Breitbart then said he would like to discuss the matter privately with Sherrod :

[Breitbart] I’d be more than happy to meet with her in private and have a discussion with her.

[Interviewer] Is that an invitation?

[Breitbart] Sure, I’ll go whoever she wants. I’ll go to Albany, Ga. I’ll go anywhere to have a private discussion with her.

Although stranger things have happened, I seriously doubt that this “beer summit” will take place.

(Orin Kerr)

The Third Circuit has handed down an interesting Second Amendment decision, United States v. Marzzarella. It begins:

This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We hold it does not and accordingly will affirm the conviction.

From the opinion:

The District Court could not identify, and Marzzarella does not assert, any lawful purpose served by obliterating a serial number on a firearm. Because a firearm with a serial number is equally effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. These weapons would then have value primarily for persons seeking to use them for illicit purposes. . . . . An unmarked firearm, on the other hand, is no more damaging than a marked firearm.

Accordingly, while the Government argues that § 922(k) does not impair any Second Amendment rights, we cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms. Because we conclude § 922(k) would pass constitutional muster even if it burdens protected conduct, we need not decide whether Marzzarella’s right to bear arms was infringed.

The court concludes that different levels of scrutiny should apply to different Second Amendment restrictions, but that intermediate scrutiny should apply to this particular restriction. According to the Third Circuit, the restriction satisfies the intermediate scrutiny standard (and would even satisfy strict scrutiny, the court indicates):

[P]reserving the ability of law enforcement to conduct serial number tracing—effectuated by limiting the availability of untraceable firearms—constitutes a substantial or important interest. Section 922(k) also fits reasonably with that interest in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable. Because unmarked weapons are functionally no different from marked weapons, § 922(k) does not limit the possession of any class of firearms. Moreover, because we, like the District Court, cannot conceive of a lawful purpose for which a person would prefer an unmarked firearm, the burden will almost always fall only on those intending to engage in illicit behavior. Regulating the possession of unmarked firearms—and no other firearms—therefore fits closely with the interest in ensuring the traceability of weapons. Accordingly, § 922(k) passes muster under intermediate scrutiny.

Eugene is cited along the way, but for a First Amendment article rather than a Second Amendment article (see p.30). 

Thanks to Howard Bashman for the link.

(Eugene Volokh)

Friday, the Michigan Supreme Court handed down an interesting case — People v. Dupree on this. The case is not novel, and my sense is that the defense is generally recognized: Just as what would otherwise be the crime of murder, attempted murder, battery, and the like might be justified if done in defense against an imminent threat, so a felon’s taking possession of a gun is justified if done in defense against an imminent threat. (The defense does not apply to a felon’s arming himself against a possible threat of attack at some indefinite future time.) Still, the case struck me as an interesting illustration. Thanks to Jason C. Miller for the pointer.

(Todd Zywicki)

Geologic time makes you feel so sort of insignificant, doesn’t it?

Via Tom Smith.

(David Kopel)

Ronald Reagan once said that the conservative D.C. weekly Human Events was his favorite newspaper. And with good reason. Back in the 1970s and 1980s, there were few significant alternatives to the then-hegemonic MSM. Along with National Review, which was Reagan’s favorite magazine, Human Events was an essential source for stories that the MSM refused to cover, and for perspectives that the MSM shut out or marginalized. Unfortunately, a recent article in Human Events falls very far below the solid journalism standards which helped Human Events earn the respect of Reagan and so many others.

“Obama The Muslim,” by  Major Gen. Jerry Curry is an article not worthy of a fifth-rate blog, let alone a serious newspaper. The latter two-thirds of the article consists of criticisms of Obama’s policies on Israel and on Arizona border security. I generally agree with those criticisms, but they provide not a shred of evidence that Obama is a Muslim. Former President Jimmy Carter is extremely hostile to Israel, and he is obviously not a Muslim. U.S. Rep. Luis Gutierrez (D-Ill.) is extremely hostile to border security, and he is not a Muslim. 

So let’s consider the evidence that Curry deploys in the first third of the article:

“President Obama says there is nothing more beautiful than the Muslim call to prayer in the evening.” “Obama’s father and step-father were Muslims and he spent his childhood living in a Muslim country where his school enrollment records say his religion is Islam.”

–All approximately but not precisely true. Four years of his childhood in Indonesia, plus a school record there. The actual prayer call quote is “one of the prettiest sounds on Earth at sunset,” not “nothing more beautiful.” This is a starting point for Curry’s case, but in itself, not even close to proof that Obama is currently a Muslim.

“He says that the United States was not founded as a Christian nation.”

–The same position was taken by the United States Senate in 1797 when ratifying the Treaty of Tripoli, and by President John Adams in signing the Treaty. Neither President Adams nor any of the 1797 U.S. Senators were Muslims.  Article 11 of the Treaty stated:

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

“As President of the United States he genuflects to the Muslim King of Saudi Arabia but not the Christian Queen of England. He thumbs his nose at America’s friends and bows to its enemies.”

–I agree that Obama is deferential and obsequious to American enemies such a Hugo Chavez and the Iranian tyrants, and that he has been the most anti-British President of the United States in well over a century, and that he is seriously harming American relations with Poland, the Czech Republic, France, and other allies. But none of that is evidence that he’s a Muslim.

As for the Saudi king: Obama did not “genuflect.” To genuflect, in a literal sense, is to bring at least one knee to the ground, as a sign of respect. Obama did not do that. He gave the Saudi king a deep bow from the waist. I thought this was a disgusting gesture for an American President, but it’s not genuflection. (“Genuflect” can also be used in a looser sense, as behaving in a servile manner. In the article, however, Curry is plainly talking about literal physical actions.)

However, Obama bowed even lower to the Emperor and Empress of Japan. That’s not evidence that Obama is a closet Shinto.

As Curry accurately states, Obama gave only the mildest quasi-bow to Queen Elizabeth II. In light of what 1776 was all about, patriotic Americans should not criticize the American President for insufficient bowing to the British monarch. One can infer from Obama’s bowing patterns that he is anti-British, and one can see that in Japan and Saudi Arabia, he went out of his way to make gestures which made himself and our nation look weak and obsequious. The bowing is evidence that he’s a poor President, but not that he’s a closet Muslim.

According to Curry, “My mother believed in ‘common sense’ testing. She said if it looks like a duck, quacks like a duck, waddles like a duck and acts like a duck; it’s a duck….In short, Obama quacks like a Muslim, waddles like a Muslim and acts like a Muslim, so is he a Muslim? My mother would say, ‘Yes! He’s a Muslim through and through.’”

I’ll give Mrs. Curry more credit than that. The looks/talks/waddles test for duck identification involves three characteristics are shared by ducks and by no other animals. Mr. Curry, however, listed only characteristics which are common to some Muslims and many non-Muslims: thinks America is not a Christian nation, dislikes the British, acts obsequious around some non-British royals, is anti-Israel, is weak on border security, tries to ingratiate himself with tyrants. Curry might as well have written, “It has two eyes, lives near water, and eats fish.” Sure, it might be a duck, but it also might be a lots of other things. Such as a law school lecturer who agrees with most of the beliefs of the far-left Christian church he attended for twenty years.

Curry’s final item of alleged proof: “Growing up as a Muslim, Obama must have learned that according to the Qur’an it is acceptable to lie, deceive and live by a double standard provided in so doing one advances Islamic goals. Muslims only pretend to trust and be friends with non-Muslims; in the deepest of their Muslim hearts they have been taught that all non-Muslims are infidels.”

–Generally speaking, “must have” conjectures are not evidence of anything. For the sake of argument, let’s temporarily accept the claim that Islamic teaching sanctions lying in certain cases. Even so, there is no evidence that “Obama must have learned” this particular alleged teaching. His Muslim education did not continue past an early age. It might be plausible to presume that he was taught some elementary tenets of Islam (e.g., there is only one God; God spoke to mankind through a series of prophets, culminating in Muhammed; the Qur’an is scripture.) There is simply no evidence that the “lying to infidels is OK” theory of Islam is universally taught in Muslim education for young children, or, for that matter, to all persons who progress through a full course of Muslim religious instruction. That some Muslims teach the acceptability of lying, and that some Muslim scholars endorse this approach, does not prove that Obama “must have” been taught this particular theory.

It would usually be a sign of bad character for any elected official to proclaim his adherence to one religion while secretly adhering to a very different religion. However, Curry’s strongly-stated conclusion is not even remotely supported by the feeble and poorly-researched evidence which he cobbles together. The article should never have been published by Human Events. Of course even eminent publications such as The Atlantic can have a writer who wallows in malicious speculation based on extremely weak and poorly-considered evidence. 

Jerry Curry’s article is not proof that Human Events never produces good articles, nor is Andrew Sullivan’s Trig Trutherism proof that The Atlantic does not publish good articles. However, because reading time is finite, when I choose to read an edited periodical, I try to choose periodicals for which I have confidence that the editors have done a good job in selecting reliable, credible columnists. Accordingly, Human Events’ retention of Curry as a columnist, like The Atlantic’s  retention of Sullivan, often make me choose to prioritize reading other periodicals instead.

(Eugene Volokh)

I think that in our multicultural time, all Americans should be able to answer some basic questions about various minority groups. Here are three that come to my mind:

1. In December, most African-Americans celebrate a winter holiday called __.

2. Most American Jews organize their lives around the __ calendar.

3. People in the 48 contiguous states who are descended from peoples who inhabited the Americas before the European conquest (but are not Hispanic) are most likely to prefer that their racial group be called __. [UPDATE: I added the parenthetical in response to Bumpjon’s comment, and the reality that many people do treat Hispanic as a racial designation, even though the census and many others view it as an ethnic one that could apply to people of any race.]

To see the answers, click on the “Continue” link that immediately follows this line:

1. Christmas.

2. Gregorian.

3. American Indian (according to 1995 data; please let me know if you know of more recent data).

(Eugene Volokh)

From Sonnier v. Crain (5th Cir. July 27):

Sonnier argues … that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion … in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said … activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit….

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

1. The Supreme Court in Forsyth held that security fees (A) couldn’t be imposed using the administrator’s unfettered discretion, because of the risk of content discrimination when such discretion is exercised, and (B) couldn’t be imposed even using nondiscretionary rules when those rules turned on the likely public reaction to the content of the speech.
2. The Fifth Circuit in Sonnier concluded that precedents related to content-neutral restrictions on speech on public streets did not apply fully to speech on public university land, and that universities should have more latitude (though not unlimited latitude) to impose such content-neutral restrictions.
3. But the Fifth Circuit nonetheless held that prong A of Forsyth applies automatically to speech on public university campuses, without any talk of more latitude being given to universities where discretionary fee policies were involved.
4. This suggests that prong B of Forsyth would likewise apply automatically to speech on public university campuses, since both prong A and prong B are animated by the same concern — the worry that the fees might be imposed based on content, either because of the administrator’s exercise of his unfettered discretion, or because of the likely public hostility to the content of the speech.

This is a pretty important issue, since my sense is that many universities do require security fees, sometimes based on the likely public reaction to the speech; see, for instance, here and here. And to my knowledge the Fifth Circuit opinion is the first appellate court decision to deal with public universities’ potentially content-based security fee policies; so I expect it to be influential even outside the Fifth Circuit.