THE LIGHTHOUSE
"Enlightening Ideas for Public Policy..."
Vol. 3, Issue 45
November 19, 2001

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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

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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.

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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.

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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.

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THE LIGHTHOUSE
ISSN 1526-173X
Copyright ? 2001 The Independent Institute
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