Monday, August 13, 2007

Jack and Eugene-- All Singing All Talking All Dancing

JB has just posted a conversation between Eugene Volokh and myself on the Bill of Rights, discussing, among other things, the Second Amendment, the Fairness Doctrine, and Establishment Clause. Eugene was such a wonderful conversation partner that I hope we will be able to do this again very soon. If you have suggestions for topics, please feel free to mention them in the comments section.

For those of you who want proof positive that I've gone over to the dark side and now maintain that the Second Amendment protects an individual right to bear arms-- much against my policy preferences, I might add-- here it is in glorious living color.

Despite the title of this post, there is no dancing, or indeed singing for that matter. But there is plenty of talking. Really, what did you expect from two law professors?



that was a wonderful conversation.

Please get EV together and do the 4th. I'd love to hear you both talk about the 4th and NSA etal.

I am a Volokh Conspiracy reader. I am a Balkinization reader (but a first time commenter). And I am a loyal bloggingheads viewer. Surely this is a great day.

Hello All,

I am just about to look at the conversation. However, I have a quick question about the post itself.

I'm wondering about JB's apparent presupposition that there exists an "individual right to bear arms." That is a right that is protected by the law and not granted in the first instance. Foes anyone else get this reading from the post? and does it accurately represent JB's view?

It doesn't seem to me that there is a natural right to bear arms (either as an individual or collectively). I am not familiar with any standard arguments, but I imagine that the right to arm oneself could be derived from those more fundamental, perhaps the clear right to resist personal attack, oppression or larger scale aggression.

(Also, just for the sake of interest: I have only known of the 2nd amendment from popular culture, and had always assumed it granted the right of an individual to keep weapons. As a matter of policy, I lean to towards opinion that people should be granted the right to own and maintain private weapons, for the purpose of preventing the state from having a monopoly on force. "Lean" was chosen carefully.)

Pete L.

Great bloggingheads ep. I must say, I have been secretly hoping for this pairing. Good to see Bob read my mind.

As a dyed in the wool conservative, I am surprised at how often I agreed with JB as opposed to EV.

As for topic suggestions: how about talking about your famed conversion to Originalism? How about the general interpretation of the 14th amendment? Commerce clause?

A pity I'm on dialup, and there's no transcript. Great invention, text: Requires minimal bandwidth, can be read faster than real time at one's own pace, and doesn't disturb the wife, who's no morning person.

Yup, Peter, the right to keep and bear arms is not fundamental, but derives from the more fundamental rights, especially the right to life, which imply a right to the tools to effectuate them.

Jack Balkin said,
>>>>>>If you have suggestions for topics, please feel free to mention them in the comments section. <<<<<

Here is a suggested topic -- My proposal for a Fairness Doctrine for blogs, i.e., a law prohibiting arbitrary censorship of blog visitors' comments.

Not a big enough issue to be worth discussing, you say? Good! Here is your big chance to become instantly famous by making it a big issue! A Guardian Unlimited webpage did have a fairly big discussion about the issue.

By "arbitrary censorship," I mean censorship for one of the following reasons --

(1) The blogger disagrees with the comment.

(2) The comment is contrary to the point(s) that the blogger is trying to make.

(3) The blogger dislikes the commenter or the suspected commenter.

Here are the basic reasons for a fairness doctrine for blogs --

(1) The more popular blogs have become major de facto public forums.

(2) Blogs are being authoritatively cited by court opinions, scholarly journal articles, the official news media, etc., making fairness and reliability of particular importance. Studies last year on the Law Blog Metrics blog showed that law journal articles had cited the Volokh Conspiracy blog 62 times and the Balkinization blog 32 times and that court opinions had cited Volokh Conspiracy twice.

(3) Comment space on blogs is virtually unlimited, hence a fairness doctrine would be no burden on bloggers.

Here are some fallacious arguments against a fairness doctrine for blogs --

(1) -- the "privacy" argument -- the notion that blogs are "private" and hence immune to government regulation. Roe v. Wade notwithstanding, there is no such thing as a general right to "privacy." You can be thrown in jail for storing kiddie porn in the "privacy" of your own home, and an environmental law can virtually confiscate "private" land. This article is chock full of descriptions of government regulations of blogs.

(2) -- the "let them eat cake" argument that rebuttals that are blocked in the original forum can be presented in another forum. Obviously the best place to present a rebuttal is in the original forum -- that is where the rebuttal is most likely to be seen or heard by those who saw or read what is being rebutted.

There was a recent news story about someone who traveled 1300 miles to burn down the house of an Internet rival, and yet people have told me that they don't believe that a blogger would go so far as to arbitrarily censor visitors' comments. And it is not just the little blogs that arbitrarily censor comments -- I have been arbitrarily censored on big blogs that get 7,000 - 20,000+ visits per day and that have received blogging awards. One would think that bloggers on these big blogs would be a little concerned about protecting their blogs' reputations. Our sick Internet culture tolerates and even approves arbitrary censorship of blog visitors' comments.

I also propose that blogs that have a prominently posted notice saying that visitors' comments are subject to arbitrary censorship be exempted from the fairness doctrine. I feel that this exemption is needed for blogs created solely for the purpose of promoting a political candidate, a commercial product, etc..

Wonderful conversation. Just the kind of reasoned debate we need more of - respectful, calm, devoid of the ad hominem vitriol that so often mars this sort of thing. I would love to hear a debate on Article II powers in general - or the position of the common law (particularly, the law of nations) in our Constitutional scheme in light of the Sosa decision.

Here are some other ideas for topics:

(1) -- authoritative citation of Wikipedia by court opinions and law journal articles. It is commonly believed that the problem with Wikipedia is editing by unknowledgeable and biased visitors, but another big problem is censorship by Wikipedia administrators.

(2) -- whether it should be illegal to block the delivery of emails to other individuals. An unscrupulous attorney of the Electronic Frontier Foundation threatened to block my emails addressed to other EFF staff members. Employers might be blocking emails addressed to their employees.

(3) -- whether it should be illegal to use IP addresses to block Internet messages. IP address blocking is illegal in the UK and possibly elsewhere in Europe and is arguably illegal in California. It is surprising that IP address blocking is practiced at all -- it is often ineffective and often blocks large numbers of Internet users who share the same ISP proxy IP address as the targeted user.

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