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THE LIGHTHOUSE
"Enlightening Ideas for Public Policy..." Vol. 3, Issue 45 November 19, 2001 Welcome to The Lighthouse, the e-mail newsletter of The Independent Institute, the non-politicized, public policy research organization <http://www.independent.org<;. We provide you with updates of the Institute's current research publications, events and media programs. Do you know someone who would enjoy THE LIGHTHOUSE? Please forward this message to a friend. If they like it, they can add themselves to the list at http://www.independent.org/tii/lighthouse/Lighthouse.html. ------------------------------------------------------------- IN THIS WEEK'S ISSUE: 1. Revised Draft No Better Than Original 2. The Second Amendment, the Courts and the Professoriate 3. Why "Smart Growth" Isn't ------------------------------------------------------------- REVISED DRAFT NO BETTER THAN ORIGINAL Although President Bush said he would resist efforts to reinstate conscription, its growing popularity among the pundit class is likely to make the draft an important topic in upcoming public debate. But don't expect this discussion to exactly parallel the debate that led to its termination in 1973. Today's "war against terrorism" is creating a dynamic that is redrawing the domestic political landscape, creating new coalitions potentially strong enough to have the draft reinstated. Most of the nation's political groups have factions that would like to see some type of involuntary servitude, be they anti-capitalist "progressives" who want to see the best of the nation's youth derailed from the career fast track, nationalistic "conservatives" who want to mandate "patriotism" and reinvigorate a strong sense of nation-consciousness, or Demopublican "moderates," such as Secretary of State Colin Powell, who want youth to make "voluntarism" a high priority. But just as the war on terrorism is "like no other war" (Bush), so the next draft is not your father's draft. Charles Moskos and Paul Glastris, writing in the WASHINGTON POST, make clear that the new draft will be packaged not as a cheap, quick way to enlarge the military, but as a new form of government-assisted public expression of the conscripts' values, i.e., a form of choice! Draftees will thus have their pick among, for example, the armed services, homeland defense jobs, such as airport security, and civilian national-service programs, such as AmeriCorps. As Independent Institute senior fellow Robert Higgs says, "some choice." "Moskos and Glastris's proposal raises several important questions," writes Higgs, "none of which they see fit to consider. Perhaps in a follow-up article they will tell us: Whatever happened to the idea that every person, even a young man, has inalienable rights to life, liberty, and the pursuit of happiness? Whatever happened to the idea that a just government is instituted to secure these rights, not to crush them underfoot upon the earliest pretext? What exactly do we gain if we can defend ourselves only by destroying the very heart and soul of what it is about this country that deserves defending?" See "Will the Draft Rise from the Dead?" by Robert Higgs (LewRockwell.com, 11/15/01), at http://www.independent.org/tii/lighthouse/LHLink3-46-1.html. For detailed background on the growth of government and the draft, see "War and Leviathan in Twentieth-Century America: Conscription as the Keystone," by Robert Higgs, at http://www.independent.org/tii/lighthouse/LHLink3-46-2.html. ------------------------------------------------------------- THE SECOND AMENDMENT, THE COURTS AND THE PROFESSORIATE The most important firearm case in years, United States v. Emerson, was a solid victory for the rights of gun owners. One of the strengths of the decision, rendered earlier this year by the U.S. Court of Appeals for the Fifth Circuit, was its citation of the vast body of scholarship that supports the individual rights interpretation of the Second Amendment, as well as numerous statements made by America's founders showing that "the right of the people to keep and bear arms" was intended to protect an individual right. This alone will help ensure that the correct interpretation of the Second Amendment will spread, as jurists, attorneys, and law students study the decision's citations for years to come. Critics of the individual-rights interpretation, however, have not relented. But neither has Independent Institute research fellow and Second Amendment attorney Stephen Halbrook, author of the classic book, THAT EVERY MAN BE ARMED: The Evolution of a Constitutional Right, as he made clear in two recent replies to prominent law school professors. According to Prof. Michael Dorf of Columbia University Law School, despite the Emerson decision the individual-rights interpretation of the Second Amendment is as much a "fraud on the American public" as when ex-Chief Justice Warren Burger passed that judgement nearly twelve years ago. Halbrook, however, explains that the Emerson "is the first ever federal appellate opinion to contribute an adequate textual analysis of the Second Amendment." Thus, the decision observed that "throughout the Constitution, the 'people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority,' never 'rights.'" Further, says Dorf, the Second Amendment protects only an armed militia, as indicated by the preamble, "A well regulated militia, being necessary to the security of a free state...." Responds Halbrook: "But as Emerson explains, this preamble announces the objective of securing a free state by a militia, which in turn is encouraged by and drawn from the people who exercise the right to keep and bear arms." Similarly, Halbrook easily dispatches numerous other distortions by Dorf. Unlike Dorf, constitutional scholars Amar Akhil (Yale) and Vikram Amar (UC Hastings) have a generally correct assessment about the Emerson decision but are guilty of committing a few historical oversights. For example, the Amars state that "the Emerson court found only one clear nonmilitary use of the phrase before 1798," but they overlook numerous statements by Jefferson, Madison and Adams explicitly advocating the protection of a right to keep and bear firearms for self-defense. See: "Reports of the Death of the Second Amendment Have Been Greatly Exaggerated: The Emerson Decision," by Stephen P. Halbrook, at http://www.independent.org/tii/lighthouse/LHLink3-46-3.html. "Emerson's Second Amendment," Stephen P. Halbrook, at http://www.independent.org/tii/lighthouse/LHLink3-46-4.html. For a summary of the new edition of Stephen P. Halbrook's classic, THAT EVERY MAN BE ARMED: The Evolution of a Constitutional Right, see http://www.independent.org/tii/lighthouse/LHLink3-46-5.html. ------------------------------------------------------------- WHY "SMART GROWTH" ISN'T High-density living, characterized by "transit villages" close to public transportation, will reduce air pollution, save commuters from the aggravation of traffic congestion and contribute to an improved quality of life in our communities, according to proponents of the faddish "smart growth" movement. Are these claims true? Would we be better off moving back to the cities and junking our cars? According to urban economists Daniel Klein and Randal O'Toole -- who discussed these questions in our Oct. 3rd Independent Policy Forum, "Smarter Urban Growth: Markets or Bureaucracy?" -- the "smart growth" movement is "smart" in name only, since many of its policies work against their intended goals. Smart growth advocates uphold public rail systems in European cities as models but ignore the fact that with few exceptions American cities lack the population density needed to make rail systems cost-effective. And with good reason: automobiles are more flexible, faster, affordable, safe and comfortable. And as cars have improved in quality, the U.S. urban public transit market has been shrinking. Hence, cities that build rail systems display little economic sense but plenty of what Klein called "infrastructure envy." O'Toole pointed out that the costs of smart growth are significantly larger than its proponents recognize. Drawing largely upon the experience of Portland, Oregon, O'Toole showed how smart-growth policies have led to escalating housing prices, tied up the 98% of the state that remains rural open space, and contributed to bad traffic congestion and air pollution. For the transcript of "Smarter Urban Growth: Markets or Bureaucracy?" with Dan Klein and Randal O'Toole, see http://www.independent.org/tii/lighthouse/LHLink3-46-6.html. Also see: "Curb Rights: Eliciting Competition and Entrepreneurship in Urban Transit" by Daniel Klein, Adrian Moore, and Binyamin Reja (THE INDEPENDENT REVIEW, Summer 1997), at http://www.independent.org/tii/lighthouse/LHLink3-46-7.html. "Is Urban Planning "Creeping Socialism"? by Randal O'Toole (THE INDEPENDENT REVIEW, Spring 2000), at http://www.independent.org/tii/lighthouse/LHLink3-46-8.html. "The Lone Mountain Compact: Principles for Preserving Freedom and Livability in America's Cities and Suburbs" at http://www.independent.org/tii/lighthouse/LHLink3-46-9.html. ------------------------------------------------------------- THE LIGHTHOUSE, edited by Carl P. Close, is made possible by the generous contributions of supporters of The Independent Institute. If you enjoy THE LIGHTHOUSE, please consider making a donation to The Independent Institute. For details on the Independent Associate Membership program, see http://www.independent.org/tii/lighthouse/LHLink3-46-10.html or contact Mr. Rod Martin by phone at 510-632-1366 x114, fax to 510-568-6040, email to <RMartin@independent.org<, or snail mail to The Independent Institute, 100 Swan Way, Oakland, CA 94621-1428. All contributions are tax-deductible. Thank you! ------------------------------------------------------------- For previous issues of THE LIGHTHOUSE, see http://www.independent.org/tii/lighthouse/LHLink3-46-11.html. ------------------------------------------------------------- For information on books and other publications from The Independent Institute, see http://www.independent.org/tii/lighthouse/LHLink3-46-12.html. ------------------------------------------------------------- For information on The Independent Institute's upcoming Independent Policy Forums, see http://www.independent.org/tii/lighthouse/LHLink3-46-13.html. ------------------------------------------------------------- To subscribe (or unsubscribe) to The Lighthouse, please go to http://www.independent.org/subscribe.html, choose "subscribe" (or "unsubscribe"), enter your e-mail address and select "Go." ------------------------------------------------------------- THE LIGHTHOUSE ISSN 1526-173X Copyright ? 2001 The Independent Institute 100 Swan Way Oakland, CA 94621-1428 (510) 632-1366 phone (510) 568-6040 fax
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