Dave Hardy

My amicus brief warned that adoption of Sharia law in place of the Restatement(2d) of Torts would do no good, and risked much evil, but would the Oklahoma Court of Appeals agree? Noooo...

2 days, 14 hours ago onWordpress in volokh.com

If my memory is correct, there is at least serious suspicion that Dred Scott was based on collusion. His owner, whose interests were represented by Sanford, turned out to have been married to a prominent abolitionist. After the Court ruled, she “sold” Scott to one of his childhood friends for a nominal sum, and the friend freed him. All in all, rather strange.

4 days, 20 hours ago onWordpress in volokh.com

“I also think I’d rather defend a thousand scumbags who stabbed a hooker and raped her dying corpse”

We all have our little episodes, so I thought I’d omit the REALLY bad parts. Like the cohort in crime testifying that he said “It’s dead, but it’s still warm. Do you want a shot at it?”

I told the prosecutor ... isn’t it unjust that they say he is a sociopath? What sociopath ever thought of sharing?

An interesting insight into ... uh ... a different side of life. The cohort testified that after they scrubbed all the blood out of the car, they went off to breakfast with his sister. Asked why he’d just taken this murderous degenerate to have a meal with his sister and her kids, he replied that he was going to have breakfast with her, and it really didn’t seem fair to leave him out. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

Quite so. We can get to incorporation via several different paths, and there may be Justices who favor one or the other, so a multi-pronged approach is best.

1) Due Process incorporation. The most direct route, requires overruling nothing (the Court has incorporated via due process without overruling its refusals to incorporate via privileges or immunities, indicating it sees those as separate questions).

2) Privileges or Immunities incorporation, overrule Cruikshank but not Slaughter-House.

3) same, overrule both Cruikshank and Slaughter-House.

(2) and (3) accord with original intent and meaning, but conflict with 130+ years of case law. I’d read the questions presented, as chosen by the Court, to mean that there are Justices interested in (2) or (3), and the grant of divided argument as there being Justices interested in (1). Even to a person uninterested in right to arms issues, this will be the most interesting case of the Term, and perhaps of the last ten years. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

Bunny Ranch is hiring ? Legal help, I mean. A little old for playing the gigolo.

I suppose we have to choose between (1) give everyone a pass because we are all hired guns or (2) no, we are not or (3) well, OK, there’s some truth to both sides and we can be good hired guns but we’re better when we actually believe in what we are advocating.

Once had a client, representation forced on me by the court, where I never labeled the files with his name. All were “killer, trial court pleadings” or “killer, research.” On the other hand, I never held myself out as a representative of guys who stabbed hookers 43 times and cut their throats and raped the gurgling corpse. It was just one of those moments when you are walking thru the courthouse to a civil motion, dumb and happy, and then the presiding criminal judge’s face lights up as he sees you and you realize life is about to get interesting....

At least at Bunny Ranch they get paid full rate.... ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

“Well, Clement’s comment was unmistakably disparaging to Gura, albeit in an understated way. While Gura’s response was a bit on the blunt side, calling it incivil or graceless seems a little unfair, just taking this exchange in isolation.”

If the Supremes were tomorrow to announce that they were taking five minutes from each of the advocates and giving it to me, it would be easy for me to say that I looked forward to working with each of them. If, on the other hand, they were lurking outside my door to beat the stuffing out of me when I picked up the morning paper, I cannot say that I would consider it entirely unreasonable. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

One of his clerks? He doesn’t use clerks. He writes his opinions himself, citing authorities from memory.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

Hmmm ... not sure if that’s endorsing First Amendment discrimination based on viewpoint, or on the speaker’s identity, but either sounds a tad inconsistent with leadership of a “liberal” wing. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

I’ve been skimming Charles, found a number of rather serious errors of fact. So many that I find it hard to enumerate them. Let me just give you the clear errors in just three pages of his article:

Game Act of 1692: “These qualifications help explain why the word “guns” was removed from the search and seizure provision. It expressly conflicted with the Militia Act’s requirement that all persons with a yearly revenue of 50l. were required to provide a “Foot Souldier and Armes” for the defense of the realm.”

No. The Game Act and the Militia Act used completely different qualifications. The Militia Act used revenue, and the Game Act used rental value of land owned.

Second, the 1662 Militia Act did not “require” that everyone over the value provide a soldier, or serve. That’s an anachronism. It authorized the Lord Lieutenant to require a person to provide such, and only a small percent of Englishmen were so chosen. It provided that the Lord Lt could not impose the requirement on someone who had land less than that value.

“This is likely what Lord Macclesfield was objecting to in the 1706 Game Act’s debates when he stated that it was a “great inconvenience” to maintain “guns” in the Game Act.”

No evidence given for this proposition. All we know is that he said it was a great inconvenience. He said nothing about the militia. In fact, Charles cites NOBODY at any relevant time who worried about a conflict between the two statutes. That’s purely his speculation.

“Henry VIII’s statute regulating arms … limited what arms one could own. The act required individuals have “lands, teñts rents fees annuyties or Office, to the yeerly value of one hundred Pounds.” Otherwise, it was unlawful for them to own, possess, or use guns.”

The citation is to §1 of the statute. It ignores §6 of it, allowing “all Gentlemen Yeomen and Servingmen of everie Lorde … and to all inhabitants of every Cittie Boroughe and Markett Towne, to have and kepe in everie of their houses and such hangune or hangunnes of the length of one whole Yarde…” 33 Hen. VIII c. 6 §6.

“Those who did qualify had to ensure that the gun was “not of the lengthe of one whole Yarde or hagbut or demyhake beinge not of the lenghe of thre quarters of a Yarde, Tenne pounds sterlinge.”

Got it completely backward. The law FORBADE guns of under the cited sizes. It was a minimum length requirement, not a maximum length one.

“The statute also regulated the manner in which one could use firearms. Those who were qualified could shoot lawful firearms only “within any Cittie Boroughe or Market Towne or within one quarter of a myle of any Cittie, Boroughe or Market Towne” at “Butt of Banck of earth in place convenient, or for the defence of his pson or house.””

Again, completely backward. The law FORBADE shooting in town or within ¼ mile of it. “no pson or psons … shall in anywise shoot in or with anye handgune demyhake or hagbutt [early guns] at any thinge at lardge, within any Cittie Boroughe or Markett Towne or within one quarter of a myle of anny Cittie Boroughe or Markett Towne, excepte it is at a Butt or Banke of earth in place convenient, or for the defence of his pson or house…” 33 Hen. VIII c. 6 §IV.

“As has already been addressed, the 1671 Game Act’s qualifications for hunting instruments conflicted with the Militia Act. While persons with a yearly revenue of 50l. were required to provide certain arms, it was illegal for these same persons to possess guns or bows for hunting if they did not make a yearly revenue of 100l.”

As noted above, no conflict. Persons with revenues above 50 pounds were not required to serve in the militia, and the Game Act limitation on gun ownership did not key on revenue.

1692 Game Act: “What Individual Right Scholars ignore is that while Section Two’s search and seizure of illegal hunting instruments may have been revised by omitting “guns,” Section Three remained in force. It still stipulated that any person not meeting the hierarchal and socio-economic qualifications were “not allowed to have or keepe for themselves or any other person or persons any Guns, Bowes, Grey hounds, [or] Setting-dogs” to hunt protected game.”

Wrong. The 1692 Act revised section three, replacing it with a list of forbidden items that did not include guns. Unqualified persons were not to “have, keep, or use any bows, greyhounds, setting dogs…” 4&5 Wm & Mary c. 23 §3. “Guns” were omitted. It provided that prior Game Acts “not herein or hereby altered or repealed” would remain in force. Id. §2.

This is just three pages out of a large article. I see many other errors, but have work to do and no time to enumerate them. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com

A psychiatrist friend remarked, upon hearing a presentation worded in that manner, that it does not require intelligence to obscure and complicate things. It requires intelligence to make the obscure and complicated understandable.

1 month, 4 weeks ago onWordpress in volokh.com

” As early at 1680, it was feared Charles II would place Catholics as Lieutenants, which would disarm the nation. The disarming he is referring to is not “individual” disarmament of unqualified persons or qualified persons, ”

That’s the error. We know that (1) the Militia Act authorized Lords Lieutenant to disarm individuals (NOT just to refuse to issue them government arms) (2) the Game Act likewise authorized seizure of arms for a broad swath of the population; (3) Charles liberally used the Militia Act to disarm; (4) James tried to use the Game Act extensively, altho there is little evidence his orders were obeyed.

None of this had anything to do with militia arsenals. If there was a connection to the potential for James appointing Catholic Lords Lt., the connection would have been a fear that they would use the Acts, esp. the Militia Act, to disarm protestants. Hence the guarantee that protestant subjects may have arms for their defense.

“it was that the entire militia arsenal was placed in the hands of Catholic. The Lord Lieutenant controlled the arms, assigned who was able to “have” them, and assessed men’s estates. This is why the 1662 Militia Act is significant for the search and seizure provisions.”

“Secret meaning” interpretation has a problem when all the legislative history favors the plain meaning. The Bill starts out as “It is necessary for the publick safety” that protestants have “arms for their common defense.”

First, the public safety language gets stripped out in committee. Then “common” is deleted from “for their common defense.” It’s to be for “their defense,” not the common defense. Both moves make no sense if there was a secret, unspoken, intent to protect militia arms only. Add in the legislative history, of complaints about the militia act being used to disarm — not about failure to issue militia arms, not about the militia as such being disarmed, but about individuals being disarmed — and the argument for a secret meaning becomes empty.

“You seem to be trying to find that one to two sources or arguments to give Malcolm credit. Supporting these arguments will NOT be easy, for historians familiar with the materials will easily tear them apart.”

Well, considering that Joyce Malcolm not only studied the original materials, but spent a year in Great Britain to do it, that Harvard Press brought out her book on this specific subject 15 years ago, to excellent review from historians.... I think all those historians must have taken a very long nap. ... See all content Hide content

1 month, 3 weeks ago onWordpress in volokh.com