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It Doesn't Have To Be That Complicated:

Found in a brief filed in federal court:

See generally United States v. Dorosan, No. 08-042 (E.D. La. 2008)(U.S. Magistrate Judge's June 30, 2008 memorandum holding that Heller and Emerson hold that the Second Amendment protects a fundamental right)(Found on internet at www.volokh.com, scroll to July 16, 2008 blog entries and the entry entitled "Ninth Circuit's Sensible Response to a DC v. Heller Claim." At the end of the entry, click the seventh entry entitled "Another Early Post-Heller Second Amendment Case" and it will carry the HTML link to the Dorosan opinion).

I don't know what browser or what settings the lawyer was using, but generally just clicking on the link to the opinion will show the address ("http://volokh.com/files/dorosan.pdf") in the navigation bar — and, if it doesn't, right-clicking on the link will usually give you a way of getting the opinion. Plus, I'm told you can always do things the old-fashioned way, and attach a copy of the unpublished opinion to the brief.

But on the other hand, I like the idea of our site being a special library in which precious documents can be found, even if only through elaborate instructions passed along by the cognoscenti. Just go to the third floor, turn right at the first black set of stacks, go ten feet down, and open the seventh book on the bottom shelf — you can't miss it.

J. Aldridge:
"The Fifth Circuit in Emerson similarly concluded that the Second Amendment confers an individual right to bear arms, apart from any connection to a state-run militia."

So the prefactory clause has been abandoned? If so, how can the right to keep and bear arms be read as limited to only certain arms? If we are going to read it like pro-gun zealots desire, the operative clause reads "the people shall have the right to keep and bear arms." It's absolute with no implied exceptions.
8.13.2008 9:28am
zippypinhead:
Oh, geez... this looks like the cyber-version of following an old treasure map. Hope the chest of gold at the end was worth the trip!

Required next step: Call the Harvard Law Review, quick! Looks like the next edition of the Blue Book is going to have to devote at least a full page to the proper citation form for documents linked from blogs where the citing party wishes the reader to take the scenic route to the destination (which in and of itself may not always be a bad thing, but that's another topic altogether).
8.13.2008 9:46am
Jody (mail):
If so, how can the right to keep and bear arms be read as limited to only certain arms?


Likely the same way that only some speech is protected (e.g., not kiddie porn and not yelling "Fire" and apparently political advertising).
8.13.2008 9:46am
J. Aldridge:
OK, some will argue the First Amendment also doesn't make exceptions for such things as licentiousness... but the federal bill of rights was not left for congress to judge because the federal bill of rights only acted to restrain congress. Congress had no power to judge or destroy such rights, only the people under their state governments could decide how far such rights could be regulated by law.
8.13.2008 9:52am
Ted S. (mail) (www):
And these are the people we expect to make judgments on topics such as net neutrality?
8.13.2008 9:57am
SeaDrive:
How can one trust that a web reference has the correct text?
8.13.2008 10:21am
Modus Ponens:
lern2blueBook.
8.13.2008 10:30am
Jim at FSU (mail):

So the prefactory clause has been abandoned? If so, how can the right to keep and bear arms be read as limited to only certain arms? If we are going to read it like pro-gun zealots desire, the operative clause reads "the people shall have the right to keep and bear arms." It's absolute with no implied exceptions.

Did you read the actual opinions? They say precisely that.

I should remind you that the first amendment has no implied exceptions either, but we have read a few in from the common law. Same with the right to keep and bear arms. It wasn't understood as being entirely without limits at the time of the founding, but it was understood as being far closer to the "pro-gun zealot" point of view than to the Washington DC or California models of gun regulation.


Oh hai, I'm in ur jurisprudence, shattering ur misconceptions and hurting ur feelins:

From the beginning of Heller:
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia,

The Court further explains:

The Second Amendment is naturally divided into twoparts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased,
"Because a well regulated Militia is necessary to the security of a free State, the right of the people to keepand bear Arms shall not be infringed."
8.13.2008 10:38am
zippypinhead:
How can one trust that a web reference has the correct text?
You can't. Not long ago there was a VC comment thread about court references to Wikipedia, where in one case the exact statement the Court quoted was subsequently edited to say it was a "silly" example.

If I was the mischevious type and didn't have much of a life away from the keyboard, I might be tempted to spend my spare time trying to substantively re-edit each and every web citation in published appellate caselaw that I could get access to. Ditto for Internet cites in published bibliographies, PhD dissertations, etc. Wikipedia, of course, is among the easiest to mess with. But I suspect there are others out there that a minimally-skilled person could get into. Think of the fun! Think of the mayhem!

Maybe this would be a good hobby for regular VC commenter Sarcastro?
8.13.2008 10:44am
PLR:
Top 10 reasons the brief contained such an unwieldy citation:

10. Use of the "right click" not allowed at law firm.

9. Brief was dangerously short of the page limit specified in the rules.

8. Web browser hacked by a gun nut constitutional originalist.

7. Law firm's cite checker also the head of IS department.

6. Justices on Fourth Circuit bench very impressed by research on those electronic computer things.

5. Motion briefs not containing the term "volokh" could result in dismissal.

4. Counsel was charging the "new market" hourly rate.

3. Citation form approved by John Yoo after research into obscure CFR provision applicable to submission of Medicare reimbursable claims.

2. Slow day at the office -- it happens.

and the number one reason the brief contained such an unwieldy citation:

1. It doesn't make a bit of difference what follows the words "See generally" in any legal brief.
8.13.2008 10:54am
Steve:
Future practitioners would do well to cite to PLR's spectacular comment in any context. See supra.
8.13.2008 11:05am
Left Hander (mail):
I wonder if there was something on Volokh that the brief author wanted the court to see, although perhaps didn't want to cite directly?
8.13.2008 11:18am
Jim at FSU (mail):
Steve:
Isn't supra supposed to direct you to the particular footnote you are referring to? As in:

Bear poop tastes of pepper and contains small bells. Supra note 32 at 53.
8.13.2008 11:22am
Snaphappy Fishsuit Mokiligon:
Jim:

"Supra" is just a fancy way of saying "above," like "infra" is a fancy way of saying below. It's certainly helpful if it directs you to what, exactly the author wants you to see above. Here, there is only one comment by PLR, and it's the immediately preceding comment, so not much work is involved, but multiple comments by PLR, or a long thread of comments that would make it difficult to see whether there are multiple comments by PLR would be less useful. In any case, supra doesn't just refer to footnotes, though it can. I think the proper full form for a citation to PLR would be: See PLR, comment posted supra (Aug. 13, 2008, 9:54 a.m.) (listing top ten reasons for an unwieldy citation).

The Supreme Court has an annoying habit of using supra in place of any recognized short form -- like so: Jones, supra at 10. This is really annoying because it might take a lot of looking to find a reference you can actually use to look up the case.
8.13.2008 11:35am
Cornellian (mail):
It would be awesome if PLR were the judge in that case and that post made it into his opinion.
8.13.2008 11:38am
Fub:
PLR and Cornellian take the thread, supra.
8.13.2008 11:57am
David Chesler (mail) (www):
"Any [programming] problem can be solved by adding an additional layer of indirection."
8.13.2008 12:29pm
KRS:
Oh hai, I'm in ur jurisprudence, shattering ur misconceptions and hurting ur feelins

Nothing supports a serious point better than a lolcats digression.
8.13.2008 12:30pm
Sean M:
Actually, although Bluebook would not ask for this cite in this context, the "treasure map" way of going through things is /a/ form of legitimate Bluebook cite in some cases. The electronic materials section goes into it, but I don't have my book handy at the moment.

So what's scary is that, in some context, that would be a "correct" bluebook cite.
8.13.2008 12:37pm
TerrencePhilip:
Isn't there a Westlaw or Lexis cite to this by now? Sometimes you read stuff like this and think that the lawyer really needed a young associate to review his work for him.

Threadjack- one of the worst examples of a tech foulup in a brief was DOJ's brief in the San Francisco suit over the Bush wiretapping program--- the DOJ lawyers had permission to redact part of their brief, but used Adobe's blackout function, not realizing that anyone reading the PDF as filed could hold the cursor over the "redacted" words and read them!
8.13.2008 12:52pm
Jim at FSU (mail):
That was an "in ur base, killin ur doods" reference, not a lolcats reference. Unfortunately, lolcats has probably appropriated that meme too.
8.13.2008 12:58pm
zippypinhead:
PLR wins! Game, Set, Match. Add his comment to the VC Hall of Fame.
8.13.2008 1:01pm
Barbara Skolaut (mail):
generally just clicking on the link to the opinion will show the address ("http://volokh.com/files/dorosan.pdf") in the navigation bar — and, if it doesn't, right-clicking on the link will usually give you a way of getting the opinion.
But that's not half as impressive much fun, Eugene. ;-p
8.13.2008 1:12pm
Roger Schlafly (www):
I think that the sensible thing is for the appellant to just have a web site with digital copies of the briefs, cases cited, and any other references that might be hard to get. Then he just has to put one URL in his appeal brief, and the court can easily find everything.
8.13.2008 3:30pm
LOL CAT:
Jim at FSU:
That was an "in ur base, killin ur doods" reference, not a lolcats reference. Unfortunately, lolcats has probably appropriated that meme too.

al ur meem R belong 2 us, supra
8.13.2008 3:32pm
roy (mail) (www):
There's an argument to be made for doing it the hard way. If this blog reorganizes its back-end, paths may change and URLS may no longer be correct, but if the basic appearance stays the same the instructions will still work. It's a question of whether to couple to the front- or back-end, and which is more likely to change so as to invalidate the cite.

That said, yeah, do it the other way.
8.13.2008 4:09pm
Matt Caplan (mail):
I figure that an "available at http://[url]... (accessed --/--/08)" ought to be sufficient.
8.13.2008 4:30pm
Jim Anderson (www):
Just don't search for it using that in-site "Picosearch" nonsense. No results returned, while Googling "Volokh" + "Dorosan" gets you an immediate, correct result.
8.13.2008 5:36pm
Bill McGonigle (mail) (www):
If it winds up being an important case you're going to have to run this site forever!

Jim, I thought it was lolcats too, but regardless the juxtaposition was delightful. Thanks for a laugh.
8.13.2008 6:18pm
TerrencePhilip:
I think that the sensible thing is for the appellant to just have a web site with digital copies of the briefs, cases cited, and any other references that might be hard to get. Then he just has to put one URL in his appeal brief, and the court can easily find everything.

You know who else thought having his own website was a clever idea . . .
8.13.2008 7:44pm