Volokh Channeling McKinnon/Dworkin?

Professor Volokh points to this article about a woman in Texas arrested after shooting to death her estranged husband. It appears to have been an act of self-defense, as the dead guy had broken into the woman's home the night before she was to go to court and seek a restraining order against him. Volokh thinks that this arrest violated the Fourth Amendment, because the police did not have probable cause to believe a crime had been committed. I think this argument fails, for theoretical and practical reasons. First, self-defense as a justification for homicide is an affirmative defense, on which the defendant bears the burden of proof. That, at least is the law in Illinois. See 720 ILCS 5/7-1 & 7-14. I haven't done a 50-state survey, but I'd be willing to bet that's the case most everywhere, and has been since time immemorial. In other words, homicides are presumptively crimes at the arrest stage, and a peace officer has probable cause to arrest if he has probable cause to believe there has been a homicide (as opposed, say, to an accident). If I had any free Westlaw time this month (I don't), I'm sure I could dig out a case or 6 that so hold.

And practical considerations militate against asking a peace officer to make these fact intensive determinations on the spot. Just one hypo: a gang member finds himself alone in the territory of a rival gang, and is shot dead. Police arrive, finding only members of the shooter's gang, all of whom swear up and down to the officer that the dead man was threatening and the shooting was done in self-defense. What result? Or simply take the Texas case. The dead man looks like a bad guy. But is it possible he just went there to talk? Not likely, I'll admit. But it is possible, and if it's true then the wife (BWS aside) is a murderer. He apparently has a record of beating the woman; but do we expect every cop to know such background when called to the scene of a shooting? I think the answer is obvious. I appreciate Professor Volokh's principled views on the Second Amendment (though I don't share them). I think on this question, his zeal for that cause has led him astray.

Either he's really stupid. . .

or he thinks everyone else in the world is. How else to explain announcing in the same news cycle that you're barring the anti-war nations of Europe from participating in the reconstruction, while asking them to forgive Iraq's debts? This is what Bush said:

If these countries want to participate in helping the world become more secure, by enabling Iraq to emerge as a free and peaceful country, one way to contribute is through debt restructuring.

In other words, we won't let you make a profit on the reconstruction, but we'd like you to help fund it.

I don't see anything wrong with excluding Germany, France, and Russia from the reconstruction contracts. We took all the risk in the war; we're entitled to the rewards. Not even Captain Renault could feign shock at such an outcome.

But if that's the way we're going to go with it, it seems absurd to ask these same countries to contribute cash (for that's what debt restructuring would amount to) and get nothing in return. Which just goes to show that even though it's justifiable to deny these countries participation in the reconstruction, it's not wise. Perhaps Dubya should ask himself, in matters of foreign policy, "WWCD?" Fortunately, Sir Winston left us a handy guide:

In War: Resolution
In Defeat: Defiance
In Victory: Magnanimity
In Peace: Good Will

Dubya, Dickey, Condee, Rummy and Wolfie seem to have Resolution down pat. Here's hoping they never need the Defiance. But God Almighty do they need some schoolin' on the Magnanimity and the Good Will.

298 Pages, Signifying Nothing?

McCain-Feingold is, in the main, constitutional. That summary should save you some reading. If you're still inclined to read the opinion, finish this post first.

The various opinions run to over 250 pages. The syllabus alone will consume 19 printed pages in the United States Reports. I’d be willing to wager this sets a record.

But don’t mistake the opinions’ heft for weight. The most telling words are these, from the peroration of Justices Stevens’ and O’Connor’s joint opinion for the Court: “We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet.” (slip op. at 118). Indeed. The AP article on the web is posted with a schematic that explains – albeit poorly – how the powers that be have already devised ways to evade BCRA’s limitations.

BCRA’s almost certain impotence also gives the lie to Justice Scalia’s tsk-tsk’ing about what a sad day this is for freedom of speech. The CEOs of Phillip Morris, GM, ExxonMobil, and the rest will still always be able -- for better or worse -- to whisper into the ears of the powerful.