The Historic Context of Gun Ownership

 Justice Thomas had a recent decision on the 2nd Amendment, focusing on the need to have a documented historical basis for any regulations of gun ownership.  This seems to be the latest version of "originalism" as a tool to interpret the Constitution.

I can understnad the perceived need for a standard of interpretation that seems to be objective, in the sense that it exists outside of the preferences of the justices. But as a failed historian I've reservations.  My perception of American society in the late 1700's is it was still structured with family, religion, and hierarchy, not individuals pursuing their own destinies.

I'm reminded of my grandfather's memoir of his father, a Presbyterian minister in Illinois durin the 1840's-70's. One thing he did was visit each family associated with his church and examine the children to be sure they were being properly brought up, knew their bible, and were on the way to being good citizens of the US. I'm also reminded of another grandfather, a great great one, who was part of the founding of a Presbyterian church in upstate New York, outside Geneva at the beginning of the 19th century. He was the recording clerk for the session.  The church was for many years the body which enforced the community's mores.

So I tend to believe that community norms and community pressure would have applied to gun ownership; those were impaired with mental problems, those who were irresponsible, those who weren't trusted with lethal weapons would have faced community sanctions.

Changing Our First Responders

Just saw an interview on Ananpour with Danielle Allen talking about policing, etc. Wasn't paying that much attention, but caught her mentioning changing our first responders.  That seems to be a popular liberal interpretation of "defund the police"--where currently police are our first responders for 911 calls (at least that's our perception, the EMTs and fire might disagree), a "generalist" model, instead we should separate different types of problems and have "specialists" for each.  For example, social workers, social psychologists, traffic wardens, etc.  

The logic is that police, being armed, resort too often to violence where a softer, gentler approach would avoid the tragedies.

I like the idea, but my contrarian streak also offers a caution"

America is a heavily-armed society. If a jurisdiction is able to set up such a system, the likelihood is sometime they will have one of their "specialists" will be killed by someone with a gun (or knife). When that happens, there will be a popular uproar and demands to arm the specialists, or shift responsibility back towards the police.

There's always tradeoffs.  TANSTAAFL 

On Chauvin--Changing the Parameters

 Mr. Chauvin was convicted yesterday.  I've not tried to follow the ins and outs, but based on what I've heard/read I've no problem with it.  Scott Johnson at Powerline says the prosecution case was stronger than his initial expectations, which is significant.

If I could, I'd like to gather people on both sides of the verdict and ask this question: if the parameters of the case could be changed, what change(s) would convince you to change your mind? By parameters I mean such things as the length of time Chauvin knelt on Floyd's neck, Floyd's actions, the prosecution witnesses, Floyd's health condition (Bob Somerby has a hypothetical there.)

While the exercise would be interesting, I don't know if it would be educational at all.  I don't think people make decisions that way, by considering parameters one at a time.  It's like buying a house; the final choice is more a gut feel than reasoned.

Countervailing Judicial Power

Ezra Klein has a piece on Vos about "countervailing power", a concept from John Kenneth Galbraith. Briefly, he saw "big labor" as countering "big business", and "big government" as an essential balancing player.  So Klein summarizes his argument:

" If the [political] question is framed as socialism or capitalism, it’s difficult to state the obvious: We may need a bit more socialism now, even if that may create a need for more capitalism later.
But if it’s framed as the balance of countervailing powers, that truth becomes more obvious. There is no end state in a liberal democracy. There is only the constant act of balancing and rebalancing. The forces that need to be strengthened today may need to be weakened tomorrow. But first they need to be strengthened today."

I've always liked the Galbraith's concept.  I'm struck by a tweet from Orin Kerr, suggesting that if conservatives become dominant in the judiciary, it will evoke a countervailing response from legal academia.

Judicial Vacancies: More Than You Want to Know

Ballotpedia has a piece today.  Incidentally, I recommend the site.

The Myth of Justice

Just listening to the book "Sapiens: A Brief History of Humankind" by Yuval Harari, who discusses the key role of "myths" (defined as things which have no physical existence) in our history.  He spreads his discussion widely, including religions, nations, corporations, etc. as myths.   I think he mentioned "justice" as one myth, though just in passing.

Got me to thinking about the two judges making the news: Judge Curiel, attacked by Trump as biased, and Judge Persky, attacked by millions as biased in sentencing the Stanford student convicted of sexual assault.  It seems to me the two go together, because the controversies are about justice.  No one would say that judges who graduate from Stanford should never sit in judgment on Stanford graduates, just as no one except Trump would say that a person whose parents immigrated from Mexico should never sit in judgment on Hispanic immigrants, or someone who disparages Hispanic immigrants. 

However, people do say that the commonalities of background between Persky and the student explain the sentence, meaning we know judges can be biased. On one side we have Trump claiming bias, on the other victim rights advocates claiming bias.  So  the myth of impartial justice is being threatened from two sides and much of the emotion in both debates is the community reinforcing the boundaries of justice.

The Joys of Old Age: Earwigging

One of the joys of old age is finding pleasure in small moments.  One of the pleasures of recovering from a cold is being able to enjoy a book without guilt.  I enjoy Mr. Grisham, and got a kick out of a legal reference in his latest, Sycamore Row, which is a return to Jake, the attorney played  by Mr. McConaughey, many years ago, back before he won the Oscar.   What was the reference?  Earwigging the chancellor is a violation of legal ethics.

Mississippi has courts of chancery, over which a chancellor presides, to try issues of estates, divorce, etc.  Earwigging means talking to the chancellor outside of court to influence his or her actions.  It's unique to MS.  Only after I enjoyed a long hearty laugh at the phrase did I research and find that I should have previously seen it mentioned last fall on Volokh.com, where it came up in reference to the trial of Richard Scruggs, the MS lawyer who sued over tobacco and later pled guilty of corrupting a judge.

Jury Duty Coming Up

From the juror instructions for Federal District Court:

What should I bring with me? What should I leave at home?

 

You should bring your juror identification badge, which appears in the middle of the left side of your summons, each day you report to the courthouse. The bar code is used to check you in at the jury office.[Barcoding jurors seems good--when I did jury duty in DC in 1970 or so we didn't have any badges.]

 

You must present a photo ID, such as a driver's license, when entering the courthouse. You and your belongings are subject to search. Please allow plenty of time to pass through security. It is very important that you arrive on time; if you are late, the entire case will be delayed. [Does this imply we're assigned to a case before we arrive? That's new to me but I see how it can work.]

 

Before they are assigned to a particular case, jurors often have to wait while important pretrial activities take place. [But this suggests we aren't assigned to a case??] You may want to bring reading material for those periods of time. You may also want to bring a sweater or jacket; the courtrooms are often quite cool.

 

For security reasons, you will not be allowed to enter the courthouse with cellular telephones, Palm Pilots, Blackberry e-mail devices, pagers, cameras, tape recorders, laptop computers or any other electronic device. [I wonder what happens to people's cell phones? Can they check them?  Pity the poor early adopters (and the mainstream these days) who use Kindle or IPad's for their reading.]

 
Potential weapons such as firearms, knives, pocket knives, scissors, letter openers, screw drivers, mace and pepper spray are also prohibited.

 This probably means little blogging next week, at least on days I have to go in.  Unfortunately getting to Alexandria from Reston is not easy.

Is the Justice System the Last Redoubt of the Secretary?

From Orin Kerr's advice to judicial interns at Volokh Conspiracy:

1) Be incredibly nice to the secretaries. You might think judges run judicial chambers. For the most part, though, they don’t: Judges’ secretaries run judicial chambers. Judges often keep secretaries for decades, and they rely heavily on them. If you’re working for a judge for a summer, the judge’s lead secretary (or only secretary, if the judge only has one) is going to be your friend or your enemy. Make sure the secretary is your friend. And don’t think for a second that the secretary works for you. You’re just an intern, and you work for the secretary and everyone else who will still be there when the summer is over.

Sounds like USDA in the 1970's.

Let All Populists Rejoice

According to this blog post of a study, Harvard Law students are no good (i.e., their free representation of indigents didn't help, and actually delayed decisions).

Court Strategies: Libs Are Hypocrites

Ezra Klein links to a Slate article on how the conservatives are manipulating things on the Supreme Court to get their preferred result.It sounds bad, but with my little nose I smell hypocrisy.  I recall reading in the past  articles, first on Thurgood Marshall and then on Justice Ginsburg, the theme of which was the craftsmanship and legal tactics involved in selecting the right cases, and making the right arguments, to lay the ground for overturning segregation and establishing women's rights.  So it seems to me what Chief Roberts and his fellow conservatives are doing is much the same, using sharp tactics to reach their strategic goal.  The difference is that liberals liked the goals of reversing Plessy v. Ferguson, but don't like the goal of reversing Miranda, or Roe v. Wade.

Soft on Crime--Republican Justices?

  From the Scotus Blog (hat tip Volokh Conspiracy),  counter-intuitive sentences, though I don't intend to revive the "soft on crime" political slur, regardless of to whom it is applied:

"But it is easy to overlook that their principled reading of other provisions regularly leads Scalia and Thomas to adopt the very most defendant-favoring positions on the Court.  In previous Terms, Scalia and Thomas have been a part of the majority revolutionizing both sentencing and the right of confrontation, which favor criminal defendants."

Balls and Strikes

Andrew Pincus at TPM reports on an exchange with Ms. Kagan on the famous Roberts definition of a judge's role: call balls and strikes.  I'm disappointed she didn't go further with the metaphor.  Anyone who grew up when I did was told the strike zone was between the knees and the armpits, and over the plate.  Anyone who watches baseball on TV today knows that's not the way umpires see it today.  And there's no consistency from umpire to umpire.  The best the pitcher and the batters can hope for is consistency through the day.

Blinded by Ideology? Bureaucrats Come Through

From Powerline, in a discussion of the review of the legal work of John Yoo and Jay Bybee:

. But it is still an outrage that a lawyer who writes a memorandum arguing a legal position with which a subsequent administration disagrees can be threatened with disbarment.

As a bureaucrat, I sympathize with the position--no one likes to have the rules changed on them after the fact.  But what is missed is the fact that disbarment was raised by lawyers in the Bush Justice Department (admittedly the career types, not Bush appointees) and the Obama Justice Department softened the review significantly (again, admittedly the softening was done by a career man).  See this Post article:

A draft report prepared at the end of the Bush years recommended that Yoo, now a law professor at the University of California at Berkeley, and Bybee, now a federal appeals court judge in Nevada, be referred to state disciplinary authorities for sanctions that could have included the revocation of their licenses to practice.[Article goes on to explain the subsequent softening.  The Post article is an expansion of the AP piece, which didn't explicitly say when the draft report was prepared.]

So, the bottom line is Powerline's outrage is misplaced. 

So Much for Original Intent--Small Farms and ACRE

Keith Good passes on a report of conflicts between USDA and Congress over interpretation of two provisions of the farm bill: how to implement the prohibition on payments for bases less than 10 acres and how to implement the ACRE program with respect to past years market prices.

This is the sort of discussion you get after most farm bills, particularly when there's been little informed discussion before they're passed. The big shots in Congress may not be talking to the big shots in USDA, because of political differences or just policy differences. The big shots of whatever position may not be talking to the faceless bureaucrats who understand what's needed to implement and, hopefully, are able to visualize the questions and problems down the road. (Yes, I was one of those faceless bureaucrats, whose wisdom was often ignored.)

The whole experience makes me doubt the validity of originalism as a theory of interpretation for the Constitution.

Orin Kerr on the Exclusionary Rule

A blast from the past--Orin Kerr revisits the exclusionary rule (evidence illegally obtained is not admissible in court), based on one of the landmark cases of the Warren Court:

As a matter of history, I think that explains why we have an exclusionary rule: judges needed a way to enforce judge-created rules even when they were unpopular and didn't have buy-in from other branches. The exclusionary rule provided a way — and perhaps the only way — to do that.

Why does the post strike me--because it explains a uniquely American trait as a bureaucratic phenomena. Also, it recalls the very hot issues of the 1960's. And maybe explains why I disdain the efforts of the wingnut left to impeach Bush or whoever--I remember so well the calls to impeach Earl Warren from the right.

U.S. and Foreign Courts--Their Interaction

Justices Stephen Breyer and Antonin Scalia have debated whether U.S. jurisprudence should be cognizant of developments in other countries, as in defining "cruel and unusual". That's a hot issue among some attorneys and even more so on cable news--the conservative types tend to say "no way", while the liberals say: "of course". (Actually, that's way over-simplified and, to a cynical old man, often depends on whose ox is gored. The usual context seems to be social issues: death penalty, etc.)

Now comes a review on H-Net of a book on the Warren Court and its influence on foreign law. (Of course, conservatives might view U.S. law, at least pre-Warren, as a model to be followed, a "city on a hill"; while liberals might be skeptical. Seems that maybe the court's example had an effect, but different in different regions.

Justice for Rich and Poor?

I don't know this case,but I'm pretty sure that a false claim for prevented planting for wheat on 31,000 acres amounts to a lot of money (6 digits, maybe 7). Yes, they're old and probably pillars of the community. But stealing money is against one of the ten commandments. At least on a day I'm feeling grumpy, I doubt whether there's a lot of equity here.