A Gentleman and a Blogger: Eugene Volokh, Founder of Law Blog The Volokh Conspiracy

"I've decided," he said, "that a government run by the Annes would have to be called 'anarchy.'"

Anne O'Dell: As you noted in your post this morning, many young people claim, because of certain perceived restrictions, that we live in a fascist state, an American police state; what do you make of that? Do you think that was only an invalid criticism in the 60s and 70s, or that it's also an exaggeration now?

Eugene Volokh: I think it's a recurring joke in free countries for people to exaggerate restrictions of liberty.

Part of it is that they don't have must to compare it against; part of it is that it's cheap political rhetoric. If you don't like the party that's in power, it's not enough to say "You're doing this wrong," or, "This is an improper restriction of liberty." You want to state it as forcibly as you can, so you reach for the extremes. The right calls the left communists, and the left calls the right fascists.

It's bunk. It actually doesn't reflect what is really going on. But at the same time, people are eager to do it because it seems like a cheap way of scoring political points, plus people are genuinely angry - with a right to be so - and when you're angry, you lose your sense of perspective.

So, it certainly happened in the 60s, it's certainly happening today. It's happened at other times in the past, certainly in the 90s some of the right used ridiculous hyperbole about the Clinton administration.

But one of the things I try to do with my blog is speak out against what I think are rhetorical excesses. I believe they're distractions, both from the left and the right, from real debate. A real conversation can really produce insight and produce a better understanding of what ought to be done.

We are faced with genuine threats to liberty, both from the government and from terrorists. We are faced with genuine needs to do something about security; we need security from terrorists while at the same time we need to keep ourselves secure from government oppression. Those are really serious concerns; we're not going to advance them by either denying that there are substantial liberty concerns involved in other things that the government does (as there always are) or while trying to magnify relatively modest restrictions into some kind of new fascism.

AO: What do you think are the things that we do need to be genuinely concerned about?

EV: Well for starters, some of it has to do with the constant concern that we all have about government. You don't need a police state to have police abuses.

Whenever you've got a government that uses force of power - which is to say, any government - that uses force of power, for example, in the enforcement of law, there's a real risk that that power will be misused, either by bad apples in government who use it to deliberately oppress people whom they don't like; or by well-intentioned people who get carried away, who are so focused on trying to catch the bad guys that they blind themselves to evidence that the person they think might be the bad guy is actually not the bad guy. Or they use tactics to catch the bad guy that end up unduly trampling the rights of others or the bad guy himself.

So, I think that there's always the risk of police abuses; there's always the risk of the government engaging in more searches and seizures than is proper, of using evidence that it shouldn't. And of course, when the risks are particularly grave, when the dangers the government is facing are particularly grave as they are today with the dangers of terrorism, there is a concern that the government's actions, while understandable, will be overreactions.

So, for example, the wiretapping program, the warrantless wiretapping program that the Administration has been engaged in, may very well be unconstitutional, because it violates the Fourth Amendment - maybe, it's far from clear, but there is a plausible argument. And it may very well violate the statues Congress has set up - also not very clear, although there is a pretty strong argument there.

I'm very proud that Orin Kerr, my friend and co-blogger, has extensively posted with a real desire to figure out what's going on, not to score political points, and has been heavy cited as a result. People, I think, go to our site to read his comments, in part, because they also more timely, more thorough and deep and important than a lot of what they see in the mass media, in part because he is a law professor who specializes in this field.

AO: He's an expert, not a generalist.

EV: Exactly, and it is the very rare journalist in the mass media who is an expert in such.

So, in any case, I think that's a potential risk.

Likewise with the military detention of enemy combatants, both U.S. citizens and others. There's no doubt that, historically, such military detentions have taken place, either as prisoners of war, or sometimes you don't call the P.O.W.s because they don't deserve the P.O.W. status. P.O.W. status comes with protections. But if you're not a regular combatant, you don't fight in uniform, you're not part of an organized force, then you're really just an enemy combatant who lacks P.O.W. status but whom you can detain until the end of hostilities, which could be decades. Simply because we want to take them off the battlefield and keep them from fighting. That's never been understood to require a military trial.

During the Civil War, the federal government captured Confederate soldiers, they didn't try each one of them. The point wasn't to have a trial; the point was to keep them locked up so they can't go back into battle and fight us.

Likewise during World War II, you didn't have every enemy combatant capable of filing a lawsuit and forcing the government to defend hundreds of thousands of such lawsuits.

At the same time, there is a real risk here that especially when the enemy combatants are not easily identified, when there's a lot of uncertainty as to whether somebody's an enemy soldier or not, in a way that's more so than when fighting regular armies, when some of the enemy soldiers may be U.S. citizens, there's the danger that such a power could be used in order to suppress domestic dissent. There are real concerns about that as the Supreme Court recognized in concluding that, while the Bush administration was partly right - it was entitled to detain even U.S. citizens as enemy combatants without a criminal trial - it had to provide some degree of procedural protections.

AO: In one blog post or article that you wrote, you quoted another writer who said that another 9/11 would be the end of free speech in many ways because, as you said, the goverment overreacts when it is particularly threatened.

EV: I don't remember the specific post, but I doubt that I said anything about "the end of free speech" because we have seen very few restrictions on speech in the past five years.

But it is the case that when it comes to both the detention of enemy combatants and searches and seizures, in a sense, you want the government to have adequate power to prevent another 9/11. Because if it doesn't, if it's too constrained, if it's unable to prevent a 9/11, then there will be much more public sentiment for much greater restrictions than there are now. Not probably free speech restrictions, because that hasn't been a big part of the debate, but I think that -

Let's assume, for example, that the Bush administration is told, "No you may not engage in this kind of warrantless wiretapping," which, according to the Bush administration, is only wiretapping conversations with foreigners. And let's say that there's another attack and another several thousand Americans are killed. So, let's say the administration makes a credible claim that this attack could have been foiled if it had been able to engage in wiretapping, and it could have been stopped. Then I think there would be a lot more sentiment for saying, "You can wiretap anything you want. You can eavesdrop on anything you want."

AO: Does this rely more on consequence than on principle?

EV: Well, yes and no. One test of principles is consequence. Some people will say, Let justice be done though the heavens fall, but they're very few. And what's more, the risk of the heavens falling is a factor for deciding whether something is just or not.

When we try to decide, for example, whether a search is reasonable or unreasonable - remember, the Fourth Amendment never says, No searches, nor does it say, No searches without warrants. It says that searches may not be unreasonable. When we try to decide whether a search is reasonable or not, we have to think a little bit about the consequences.

More broadly, when we're trying to figure out what principles to adopt, if we're libertarians or if we're privacy advocates, if we think that privacy is really important, we have to ask how it is that we can best protect privacy. And protecting privacy today, the point that the government is trying to make, in fighting terrorism, is only going to lead to a stronger anti-privacy movement after the next attack.

It seems to me to be a self-defeating position, in that even if our principles maximize privacy, we have to ask in a practical manner how we can do it. If we really do think that there will be an irresistible outcry to restrict privacy following a future 9/11, then if we really believe in privacy, we ought to do what we can to try to prevent that from happening.

And this is just part of my general philosophy. I think principles are very important, but I think the reason we adopt certain principles is in light of practicality. It is a very rare principle that is adopted without any regard whatsoever to its practical consequences.

AO: You had another recent post about international norms affecting law and the interpretation of the Constitution. At what rate or to what extent do you think international norms have affected or will affect the practice of law in the U.S.?

EV: In the tradition of law generally, the answer is: A lot, and they always have.

One example is admiralty law, essentially the law of disputes over navigable water. Historically, because navigable waters have been so heavily a locus for international trade, it has made a great deal of sense for American courts to try to harmonize American rules with foreign rules and at least take into account foreign rules in deciding where the jurisdiction of various countries extends to, how you decide salvage rights, and various other kinds of things. So, as a consequence, you see American courts in admiralty cases and, generally, in cases involving international trade, referring to international rules for centuries now.

Likewise, you look at copyright law, and while it hasn't been the courts that have changed American law in light of international norms, Congress has. A lot of traditional rules of copyright law have been changed in the late 70s and 80s and 90s in order to accommodate international norms. That's just a part of Congress adjusting to international trade.

What's more, even in property law, contract law, and criminal law, the American courts have looked to - generally, not the decisions of all nations, but the decisions of England and some other English-heritage nations, because our law is based in English law and the courts are influenced by decisions like that. So, you can read criminal law cases today where they'll sometimes cite British cases, not binding authority, but as persuasive, just like the courts of one state might cite the courts of another state.

The real controversy that arises is the extent to which international norms should be a guide to understanding the American Constitution. I think that's a tougher question, and there, I am more hesitant about adopting international rules. The fact that, for example, much of the world has much narrower views of free speech than we do, or does not accept the right to bear arms as a fundamental, individual right - that's the way they do things, and we can argue against it or not, but it doesn't follow that because they do things this way, we ought to be doing things the same way. Or, especially, within our Constitution, which was written as a charter of government for America, by America, using American norms, should be influenced by that.

Likewise, the death penalty, for example. There are lots of good arguments for and against the death penalty, but the fact that European elites - and, as I understand, it is in large measure European elites that oppose it, not Europeans as such - the fact that European elites oppose it or oppose it for certain kinds of criminals who are under 18 when they commit the crime, or what have you, doesn't tell us much about what we should be doing, at least as a constitutional matter.

Maybe when we're voting as citizens on whether to enact a particular rule or not, we might think that the views of the governments of Europe should matter. But when we're interpreting the American Constitution, which is, again, a charter of government for Americans, I don't think that the way foreign countries do things should affect us much.

AO: I agree. With everyone talking about the Danish cartoons, a lot of people don't seem to realize that free speech doesn't apply in the same ways elsewhere that it does here.

EV: They're realizing it more and more. And I think that that will probably increase people's reluctance to adopt European laws.

I think that, especially given this particular context, a lot of people think there's a great deal in Islam that is deserving of criticism, inasmuch as the criticism is appropriate. Now, I think that most Americans realize that many Muslims are peaceful people, but there are others who are quite violent.

There are certainly strands in Muslim theology that support that. There are such strands in Christian theology that, just in recent centuries, those strands have been subordinated to the more peaceful strands. And in the Muslim world, unfortunately, the violent strands have not been so subordinated.

I think a lot of people take the view that you have to have freedom to robustly criticize others' religions, even in ways that might be quite insulting to them. And in America, I think, for example, a lot of people get upset when there's criticism, what they see as vulgar or offensive criticism of Christianity, but there are very rarely calls for criminalizing it, and certainly not violent demonstrations against it.

So, this helps indicate that there is a real danger for Muslim extremism. There's talk in Europe of trying to suppress this supposed anti-religious hate speech, and that's not a good model for America, where criticism of religion has long been understood as part of our civil rights.

AO: When you talk about hate speech, the cartoons - they're in such bad taste, but they seems relatively mild. I was watching a documentary last night about some neo-Nazi group in Alabama who decided to have a parade, and they had police protection - men and women of color protecting the Nazi protesters. But that's free speech; that's what it's for.

EV: That's right. I should say, I want to be a little cautious about condemning the cartoons. Some of the cartoons, the ones that linked Muhammad to terrorism -

AO: The turban with the bomb?

EV: Yes, I think those are - I would not have published those cartoons, as a matter of editorial judgment, because I do think it's kind of unfair to tar the whole religion with this brush.

AO: It is a blatant stereotype -

EV: Well, let's be a little more careful.

AO: Ok, let's.

EV: It's not so much that it is a stereotype; many stereotypes are accurate. It is a suggestion that there is something innately violent or inherently violent about Islam or about Muslims, even though the great majority of Muslims, like the majority of any religion, are not themselves violent. There are certainly many Muslims who do not support terrorist violence; although, unfortunately, many Muslims do.

Now, cartoons are never very good at making nuanced distinctions. The editorial cartoon is not a medium that's fundamentally about nuance. But, given that people feel very strongly about their religions and are understandably sensitive to criticism that they see as personal criticism addressed to their religion, I do think that those kinds of cartoons are not a fair way of characterizing Islam.

The tougher question is: What happens to cartoons that do not demean Islam but simply depict Muhammad, which violates Islamic law? But historically, Muhammad has, in fact, been depicted in the past by Muslims. So, it's not even that the whole of Muslims disapprove. Second, they may disapprove of it, but the fact that someone disapproves of my depiction doesn't mean that I shouldn't depict it.

The closest example is that many Christians and Jews disapprove of the use of the word "God." For example, you see sometimes that Orthodox Jews who will spell "God," "G-d." But I don't think that makes it improper for me to use "God" in conversation, in publishing, or whatever else.

While I think that I can see a newspaper saying, "Look, we don't want to alienate our customers by depicting Muhammad at all," neither would I say that it is improper or rude for newspapers to do that. They can choose not to be bound by other people's religious laws. So that's why I wouldn't condemn all of the cartoons outright.

AO: How long exactly have you been teaching law?

EV: Since the fall of '94. This is my twelfth year teaching.

AO: Have you noticed in the past 12 years any change in law students, anything you could generalize about?

EV: No. I'm always skeptical of people saying they notice change because people aren't very good at remembering really accurately what things were like or people were like on average 12 years ago compared to what they're like on average today.

When people do notice change, I wonder if they're remembering selectively certain things. A lot of people say, "Oh, the world has gone to pot!" Somehow, they have a rosy view of the past, so they remember the good things about the past and see the bad things about the present.

But I haven't even really noticed any changes that I need to discount. I think people have been much the same, in my experience.

AO: Ok. I've heard so many people saying that first-year associates now are more dissatisfied than first-years 10 years ago, they care more about quality of life than their elders do, they care less about billable hours.

EV: Even in the late 80s, people were concerned that the legal profession has gotten - that working as a lawyer was much more time consuming than it had been a generation or two before, and that as a result, lawyers were less happy, although they made a lot more money than they had a generation before.

I don't see that as having changed much since then. My sense is there was a difference between lawyering in the 60s and lawyering in the 90s. I'm not sure there is a difference in lawyering or what people expect from lawyering, why they go into lawyering, in the 90s from what it is now.

Though, I should say, many of my friends are lawyers, both law school classmates and others, and some of them are unhappy. Some are happy. Most feel okay about their jobs but are not thrilled by them, which is, I think, probably the norm in many professions. You know, it makes a living, keeps food on the table for my children, moderately satisfying; but at times, it's hard work. At times, it takes up a lot more time than I want it to. And it's relatively few people who I think are genuinely miserable at it, in part because if you're completely miserable in one job, you're going to switch to another job.

And with a J.D., you have lots of options. But if you have a J.D. and you insist on making top dollar and you really want to spend a lot of time with your family, then you will be miserable. But if you're willing to sacrifice one or the other - if, like some people, you're willing to work long hours and see your kids some but leave most of that to your spouse or to the nanny, that's ok. On the other hand, if you really want to have lots of time to spend with your kids and you're willing to work for a much more modest salary - working for the government or working in-house, or whatever else - you can do that, too.

And I think generally what happens is, after a while, people figure out what it is that they really want and end up in a position where they've found something that makes them at least modestly happy.

AO: Well, you started teaching law when you were awfully young. Does that make you happy, moderately or otherwise?

EV: Being a law teacher? Law teachering is a fabulous job, just fantastic.

It is one of the few jobs where you are not only entitled to say exactly what you think, you're essentially entitled to express any point of view on the subject that you think is right; but you're also entitled to do that about whatever subject you think interesting within the very broad range of law. So, you are not only not constrained by the need to advocate on behalf of your client, whether you agree with his position or not; you're also not obligated to limit your views to those views that come in the door.

Judges, for example, their job is to express whatever views they think are right as a legal matter, but really on the particular subjects that come in to them. And if you're a federal judge, most of the subjects are immigration cases, sentencing guidelines cases, and other things that are a relatively narrow set of topics.

Whereas I, if I'm interested in free speech law, I can say whatever I want about free speech law. In fact, it's my job to say whatever I want about free speech law. Then, I get interested in firearms regulations; I'm perfectly free to change my focus and write and teach about that subject. Now, I've gotten into interesting crim law; I've started writing more about crim law and I'm teaching crim law. I mean, it's a fantastic job.

And it pays quite well, not as well as being a partner at a top law firm, but certainly adequately. And, on top of that, while most successful scholars spend a lot of time doing it, the hours are very flexible. So, you can work around your family's schedule. If your kids are younger, you can slack off for a while; then, as you get some more time, you can spend more time on your work.

It's really a fabulous job, and I think most law professors are very happy being law professors.

AO: I've noticed that, too. Most law professors I've spoken to certainly seem happier, on average, than most attorneys I've spoken to.

You brought up the Second Amendment issue of firearms regulations. I hate to ask you such an elementary question, but in your interpretation of the Constitution, why do Americans have the right to bear arms?

EV: That's not an elementary question; it's a very difficult question. Let me just clarify, there are three separate issues here.

One is that the U.S. Constitution, the federal Constitution, grants all of us the right to bear arms. And the Second Amendment is famously ambiguous - or at least it's ambiguously interpreted. There's an unusually complex grammatical structure for the provisions of the Constitution. It speaks of a well-regulated militia being necessary for the security of the state, that the right to bear arms shall not be abridged. So on the one hand, it talks about a well-regulated militia, which sounds like a military force. On the other hand, it talks about the right of the people to bear arms, not the right of the state or the militia. I've written some about this; but by the time I came to the subject, the really important stuff had been already written. I'll be happy to email you a link to my testimony - I testified -

AO: Yes, I already have that.

EV: So, it explains my arguments, but my view is that, indeed, the Second Amendment does secure a right, an individual right to bear arms. That's probably the dominant view these days among those scholars who've looked at it.

It's not the dominant view among lower federal courts, which mostly say it's only a state's right, although one court has said that it is an individual right. Though I should say that even though it's an individual right, probably under the proper interpretation of the Second Amendment, this leaves a lot of room for regulation. It certainly would prohibit the government from just banning guns outright, but it would leave the government free to impose pretty substantial restrictions, including ones that I think are a bad idea. The Constitution doesn't forbid all things that are bad ideas or mandate all things that are good ideas.

The second question is: What do you do about the state constitutional provisions that talk about a right to bear arms? Forty-four of the 50 states have them; in most of them it is quite clear, there's just no debate that it includes an individual right to keep and bear arms. So then the question we should be thinking about and one day write about is: What exactly is the scope of it? What exactly does the individual right to bear arms mean? So, for example, is it permissible for the government to ban felons from possessing guns? Is it permissible for the government, in spite, again, of a state constitutional provision that talks about an individual right to bear arms, to ban concealed carrying of weapons and various other things?

The third zone, which to me is much more interesting, is: What's a good idea? As a policy matter, what makes sense? And I think, I've read a lot about constitutional law, and I think constitutional law is important. But I think a lot of people get too enamored of the constitutional debates and focus too much on what it is that the Constitution forbids or mandates. And it turns out that, in a lot of areas, the Constitution leaves the government with a lot of flexibility. And the question is: How should that flexibility be exercised?

So, for example, I think that bans on so-called assault weapons are probably constitutionally permissible. I think they're kind of a silly idea, because I think assault weapons, as they are defined, are no more lethal than other kinds of weapons. It ultimately does not distinguish the really dangerous guns from any less dangerous guns, but nor as a practical matter do I think that it can't.

Likewise, for example, registration of guns. It's an interesting issue, and in theory, you can imagine that, if you register guns, it will still allow people to possess guns but, at the same time, make it easier to solve crimes. At the same time, registration does make it easier for the government to confiscate the guns; so that's one reason we are concerned about it. It creates the first step to prohibition. And furthermore, as best I can tell, when it's been tried, it has actually not been found to be terribly helpful at solving crimes.

AO: Registration of guns hasn't been helpful?

EV: Well, apparently - and I'm not an expert on the subject. Understand, I'm an expert on many aspects of firearms law, but not this specific issue of registration.

When it's been tried, for example, in New Zealand and in Canada, it has been found to be extremely expensive; and the databases have not been used to solve many crimes. It's very rare that a crime would be solved using registration data. And, you know, that's just not one of those thing you can try to figure out as a matter of first principles; you actually have to look at the evidence and see what kind of evidence you can collect about whether, in fact, these databases are being used effectively or not. Intuitively, it sounds like it could be a useful tool; but in practice, the sense is that it hasn't been that, especially since there are costs to any program. And when you have a costly criminal justice program, those costs are not being spent in possibly more effective ways of policing.

So, one thing that I try to do, for example, through the blog, is to explain to many people the limits on the constitution, because so many Americans - to them, everything is just a constitutional issue. As I said, the Constitution doesn't prohibit everything that's a bad idea, doesn't mandate everything that's a good idea; and sometimes, you need to do the hard work of actually trying to figure out what works and what doesn't.

When I teach my firearms regulations seminar, for example, the majority of it is focused on criminology, because the focus is to teach students how to understand social science evidence and how to make legal arguments based on it. And if I had my choice, I wouldn't talk at all about the constitutional issues; it's just the students are excited about that and want to talk about it. But most of the time I spend talking about the criminological issues.

AO: What do you make of this whole thing with Dick Cheney shooting somebody in the face?

EV: I'm against it.

AO: I haven't been reading the news for the past couple days; do you know exactly what happened?

EV: My understanding is - and you shouldn't quote me on it because there is more reliable data out there - but my understanding is, he was hunting; and he turned to shoot in a place where he thought there were birds, but actually, there was this guy. And it may be that both sides were at some measure of fault, that the person that was shot may have been in a place where he was not expected and that he should have alerted people to that.

At the same time, the rules of hunting safety are that you, as a hunter, have the primary responsibility; and your responsibility is to know where it is that you're shooting.

But if you think about it, these kinds of accidents are fairly rare. Fatal gun accidents are quite rare; there are fewer than a thousand of then every year. And that's compared to about 40,000 fatal car accidents, maybe about 5,000 drownings. My understanding is only about - only a minority, and I forget the exact data - but my sense is that only about 10 to 40 percent are outdoors accidents; most of those are hunting accidents. My guess is non-fatal ones are a lot more common, although, obviously, that's severe.

If people try to use it as an argument for gun control, which I'm not sure they are, but certainly it will be natural for them to, because everything, all these things are used on one or the other side. What does it mean?

You could say, "Well, you should have training requirements." But Cheney is not a novice hunter. Cheney's been hunting a lot, and if made him sit through another class, it's not like he didn't know not to do dumb things. People do dumb things, even when they know they shouldn't.

Or, what about banning this particular kind of gun? But this was a shotgun. One of the things that gun-control proponents have generally stressed is that, "We're not after banning hunting guns; we're not after banning rifles and shotguns." Well, if they really are going to be calling for some sort of prohibition here, they're going to be calling for a prohibition on a hunting weapon.
So, what else is there to do other than to say that people should be more careful? The fact is that, like many recreational activities, hunting has certain risks. The risks are nearly as high as other recreational activities such as biking or boating or motorcycling; although motorcycling and bicycling, in some measure, are not entirely recreational. In fact, hunting isn't entirely recreational, either. But, in any event, all of them have risks, hunting probably a little less than some, a little more than others.

And the unfortunate fact is unless you're willing to completely eliminate the sport and eliminate the pleasure that it provides to tens of millions of people - something that, in any event, is not politically feasible - you're going to have that kind of risk.

This having been said, there's no doubt that Cheney has egg on his face. It's also conceivable this might involve some criminal liability, although probably not very serious criminal liability. But, it's one of those stories that I think is more of a distraction. They say that people just find it interesting - that's fine. But if people try to draw some broader lessons from it, there's not a lot to be drawn.

AO: So, aside from hunting and self-defense, what do you think are the other reasons for bearing arms? How do you interpret the "militia"? I'm sorry to take it back to the Constitution after your remarks -

EV: It is quite clear that when the Framers spoke of the right to bear arms, they were discussing the militia as the armed citizenry - the armed citizenry subject to government control, but the armed citizenry as whole.

The militia was understood to be not just like the National Guard or a small group. It was meant to be all - at the time of the framing, basically, all white, adult males up until age 45. And the theory was that by keeping an armed citizenry, you not only help protect the country against foreign invasions. You also help protect the country against government oppression. So the Framers, who had just fought a revolution, took the view that by maintaining an armed citizenry, you both deter government oppression and, should government oppression unfortunately ever happen, there would be a tool for fighting government oppression.

Now, this is to me quite clearly the historical understanding. It's not something that I would relish happening in America today, nor do I think it's something that is really that viable as a practical matter today. Modern military forces have a very substantial edge over even an armed citizenry. So, even if the citizenry were armed with ordinary infantry weapons, which would include fully automatics as well as not, I doubt that it will do that much to deter government oppression. If the government wants to be oppressive, it could do so. Nor would it be particularly pretty if the citizens started a revolution. It would be extraordinarily bloody, much more so than the Revolutionary War.

So, as a practical matter, I don't think the armed citizenry today does much to deter government oppression. Maybe I'm mistaken. It's possible that on the margins, in some situations, it might do something. But it may not deter the Nazis; it may not deter the extraordinarily oppressive regimes that are bent on total oppression. But it might deter regimes that are on their way there but are not yet willing to use massive military force against the population.

So, it's conceivable that this might be so; I just doubt it. I think the main value of private gun ownership these days is simply for self-defense against criminals. But, as I said, if you look at it from a historical perspective, from a perspective of what the Constitution originally meant to people and why it was written this way, it is pretty clear that the revolutionaries who wrote the Constitution did so in order to deter government oppression.

AO: Thank you. You've just settled a dispute between a friend and me.

EV: Well, there you go.

AO: So, how's the blog going, in general?

EV: The blog is going very well. We're having more readers on average than we have, really, ever before. Used to be, for a while, I think a year and a half ago, we had roughly 10,000 unique visitors per weekday. Now we're closer to 20,000, on average - probably more, even, recently.

Part of it is, I think, that blogs are just getting more popular; more and more people are learning about them. And part of it is, I think, we're getting more popular. I'm very pleased with my decision to have turned this into a "Conspiracy." It was originally "The Volokh Brothers" - Sasha and me. And then, I realized that in order to make it work, it would be good to have lots of really good people on it. We have Orin; we have David Bernstein; we have Randy Barnett - a lot of people that post a lot.

I'm just very impressed by it. I'm very happy. I think that it's like starting a magazine. Bill Buckley took his money and started the National Review. Somebody started the New Republic. Now, those are obviously much more influential journals, but at the same time - in part because they were at a time when there were relatively few media sources out there - but at the same time, for a fraction of that cost, a tiny, tiny fraction of that cost, the main cost being our time, we have started up something that has the readership of a small but not trivial opinion magazine.

And we're very pleased - at least, I'm very pleased at being able to do this. I like being a scholar; being a scholar is about a lot more than just publicizing to the public. It's about coming up with new ideas. But I think part of what scholars ought to do is they ought to try to spread their views to the public at large.

AO: So, what do you want the blog to become? Do you have any particular goals for it?

EV: Well, my goal, my selfish goal is when I have something to say about something that I think is right, I want people to agree with me. They won't always agree with me, but the first step for them agreeing with me is for them to hear what I say. And it would be really nice if, when there is some, say First Amendment issue that comes up, people turn to the blog. Lawyers, judges, reporters, various journalists turn to the blog; and one of the first things they see is what Volokh says about this. Because I like to think what I say about it is right; and if I'm right, then it would be really good if they agreed with it.

Or, when it's on something like FISA or other kinds of surveillance issues, they turn to the blog and see what Orin Kerr has to say about it. I can't hope to be as expert on it as he is, but I'm perfectly happy to bask in his reflected glory and to feel that when Orin's views are made public through the blog and affect debate through the blog, I will have helped his doing that. I think that's what many editors of magazines say. They're not my ideas, but I helped bring them out.

So, that's my goal, and already, I see that happening at times. But, naturally, we have tens of thousands of readers, and some of them are journalists and other opinion leaders; but many opinion leaders pay no attention whatsoever to our blog. It would be nice if, at one point when they're looking for something, they look at us.

I doubt that it will ever be an elite institution in the way that, say, the news section of the New York Times once was and still is in considerable measure, because we'll never have the time and energy and money and inclination to actually do that. But it would be nice if, at least in the specialized fields for which we write about, if law professors, judges, and journalists looked to us. That's our hope.

But even if we don't get there or we get only a fraction of what we would like, we'll still be having fun doing it. That's the good thing about being both a professor and a blogger. You can aim at something, but realize that even if you missed it, you don't say, "Oh, my God, I've done such unpleasant, ungratifying things in the hope of a long-term benefit; and I've gotten no long-term benefit."

You can say, "No, I've done things that I've enjoyed in the hope of long-term benefit, and I've gotten a little of the long-term benefit. But in the process, I've had fun doing it."