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District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances:

The statute is 18 U.S.C. § 922(g)(3), which bans possession by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act." The case is U.S. v. Yancey (W.D. Wis. Oct. 3), and the relevant analysis is:

As this court noted recently, Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession. United States v. Kilgore, 2008 WL 4058020 (W.D. Wis. Aug. 26, 2008). Heller did not address a state’s right to impose restrictions on handgun possession. Indeed, the Court said explicitly that its opinion was not intended to suggest that all gun laws and firearms restrictions are unconstitutional. Id., at 2816-17 ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ...["]). As this court held recently in affirming the constitutionality of 18 U.S.C. § 922(g)(1), which criminalizes firearm possession by felons, Heller did not make the firearm restrictions of 18 U.S.C. § 922(g) constitutionally suspect. Instead, this statute contains just the sort of longstanding prohibitions on firearm possession that Heller allowed. Kilgore, 2008 WL 4058020.

Since Heller was decided, no court has found the firearm restrictions in 18 U.S.C. § 922 to be unconstitutional, even under an individual rights interpretation of the Second Amendment. Instead, courts have repeatedly affirmed the constitutionality of the statute’s prohibition of firearm possession by felons, E.g., Kilgore, 2008 WL 4058020; United States v. Robinson, 2008 WL 2937742 (E.D. Wis. July 23, 2008); U.S. v. Brunson, 2008 WL 4180057 (4th Cir. Sept. 11, 2008); United States v. Irish, 2008 WL 2917818 (8th Cir. July 31, 2008); United States v. Gilbert, 2008 WL 2740453 (9th Cir. July 15, 2008)); persons convicted of domestic violence offenses (United States v. Booker, 2008 WL 3411793 (D. Maine Aug. 11, 2008); United States v. White, 2008 WL 3211298 (S.D. Ala. Aug. 6, 2008)); and illegal aliens (United States v. Boffil-Rivera, No. 08-20437(S.D. Fla. Aug. 12, 2008)). Although to my knowledge no court has confronted the provision defendant challenges, which prohibits firearm possession by an unlawful user of a controlled substance, the provision’s constitutionality is not suspect. Rather, it is another example of a longstanding prohibition on firearm possession that Heller permits.

If the government proves, as it has charged, that defendant is an unlawful user of a controlled substance and that he was in knowing possession of a firearm, a jury could find defendant guilty of violating 18 U.S.C. § 922(g)(3). Such a conviction would not violate the Second Amendment to the United States Constitution. Nothing in Heller restricts the federal government from criminalizing the possession of firearms by unlawful users of controlled substances.

Cityduck (mail):
Or put another way, the right articulated in Heller to possess certain types of guns is not absolute, but may be restricted similar to how government may restrict free speech.

I see a lot of angst on the horizon amongst the folks who have a strange conception that gun ownership rights are absolute.
10.7.2008 1:21pm
Gene Hoffman (mail) (www):
I do think there is some concern that non-violent criminality shouldn't so easily strip a fundamental right.

Interpreted literally Obama and Limbaugh are both barred from firearms possession. How does one restore the right here?

-Gene
10.7.2008 1:26pm
Tracy Johnson (www):
I think the interpretation of these law has improved since this year's Supreme Court decision.

But it begs a question: If at some point could our own government declare undesirable political opponents insane like the old Soviet Union did (using a corrupt due process), and send them to asylums? Therefore de-facto making them unable to own firearms.
10.7.2008 1:35pm
Tony Tutins (mail):
Prof. V.: Isn't this part of the statute (or addicted to any controlled substance) unconstitutional under Robinson v. California? That would keep even "clean and sober" addicts from owning firearms.
10.7.2008 1:38pm
Kazinski:
I think their should be some sort of nexus between the crime and the gun possession. It would require such a nexus under Washington state law. The prosecutor would have to show some sort of substantial relationship between the possession of the gun and the use of controlled substances. I'd like to see this standard extended to the rest of the country.
10.7.2008 1:39pm
therut (mail):
Yea the Commander in Cheif including Clinton, Bush and Obama(if he wins) can not possess a firearm but can command a mighty military. Absurd.
10.7.2008 1:42pm
Oren:
Honest question guys, the statute forbids firearm possession to anyone "who is an unlawful user of or addicted to ...". That seems (to an idiot like me) to imply a present-tense construction -- the prosecutor would have the burden to prove that the person was an unlawful user or addict at the time of firearm possession.

I judge from your comment that you think the burden is significantly lower -- that the defendant merely had to have been a drug user recently. Is there caselaw that supports that interpretation?
10.7.2008 1:48pm
PLR:
Interpreted literally Obama and Limbaugh are both barred from firearms possession.

And Barry Bonds also, yes?
10.7.2008 1:48pm
Gabriel McCall (mail):
You're right that there's nothing in Heller, specifically, which would bar this; however, I'd disagree that the second amendment permits this interpretation.

The language "shall not be infringed" is unambiguous. The second amendment as written does not contemplate exceptions, even for felons. If the people of the United States want to change the Constitution so that the right to keep and bear arms shall be infringed in specific cases, the Constitution offers procedures for formal amendment.

The idea that it only takes a 51% majority of the Supreme Court justices to decide that the Constitution now means something entirely different from what it used to mean, completely bypassing the amendment process, would have horrified the people who signed the original document.

"The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Jefferson, commenting on Marbury v. Madison
10.7.2008 1:51pm
CDU (mail) (www):
The language "shall not be infringed" is unambiguous. The second amendment as written does not contemplate exceptions, even for felons.


It's not really any different from "Congress shall make no law" in the First Amendment, yet none of the first amendment rights are regarded as absolute and without exception.
10.7.2008 1:55pm
Jon Roland (mail) (www):
The courts fail to decide on a consistent concept of what a right (immunity) is. It is one thing to incidentally burden the exercise of a right by the exercise of a delegated power, and quite another to explicitly legislate a disablement of that right without judicial due process.

I discuss this issue in my LR article, Public Safety or Bills of Attainder? What 18 U.S.C. § 922(g)(3) is ewssentially doing is making it a crime to possess an item based on an administrative determination that the exercise of his right to do so has been disabled. My argument is that the only constitutional way to do that would be for the (probably state) court to explicitly disable the RKBA in the sentence or decision on a petition to disable (for incompetence, danger to the public or himself, etc.), and then prosecute in the court that issued the order for contumacy. It does not work, constitutionally, to prosecute criminally on the basis either that due process had been done to disable a different right, or on the basis that some administrative agent decides the right is disabled on the basis of actions that were never subjected to judicial determination in a court of competent jurisdiction. Both represent violations of the constitutional prohibition of bills of attainder.

There is also the minor matter that there is no constitutional authority to make it a crime to possess anything, except perhaps stolen property on the territory of a federal enclave under Art. I Sec. 8 Cl. 17. Wickard v. Filburn was wrongly decided and did not amend the Constitution to confer such a power.

A case like U.S. v. Yancey (W.D. Wis. Oct. 3) should be argued in a different way, based on the analysis above.
10.7.2008 1:58pm
EH (mail):
Tony Tutins: Layman here. Is there anywhere in the US where addicts do register as such, like in parts of Europe? My gut-reaction to the situation in this case is one where the accused lives in a state (at least) where being under the influence of certain substances is itself a crime. For instance, here in California, even without possession, simply being under the influence of heroin (or meth, I believe) is a felony. It's with this understanding that I think this is about firearm possession where the arrestee is later found to have been under the influence. In short, an enhancement to the other charge(s). If they're clean and sober, there's no enhancement.
10.7.2008 2:00pm
EH (mail):
Oren and I seem to be in the same vicinity here.
10.7.2008 2:02pm
Sigivald (mail):
Gene: The law does not prohibit people who have used controlled substances unlawfully from owning guns.

It prohibits current users from owning guns.

The statutes do not define "addicted to", but it seems very much a stretch to use the AA-style meaning rather than one of "current, active addiction", which is the term's general meaning in normal use.

(Indeed, a "once an addict, always an addict and therefore prohibited even decades later" provision sounds like exactly the sort of thing that would be struck down as immensely overbroad, even by a Court that agrees with Congress that non-felonious use of drugs should strip one of a Constitutional right.)
10.7.2008 2:05pm
Bill Quick (mail) (www):
It's not really any different from "Congress shall make no law" in the First Amendment, yet none of the first amendment rights are regarded as absolute and without exception.

As a strong supporter of the unadorned, plain meaning of the Second, I'd certainly like to see it applied with no more restrictions, and equally strong scrutiny, as the First.
10.7.2008 2:06pm
Jon Roland (mail) (www):
Gabriel McCall:

The language "shall not be infringed" is unambiguous. The second amendment as written does not contemplate exceptions, even for felons.

The 2nd Amendment (and other provisions of the Bill of Rights and other rights-defining provisions) means there shall be no legislative or executive infringement (disablement) of the right. Any right can be disabled as part of the sentence upon conviction of a crime, if the statute prescribes such disablement (of exercise of the right to life, limb, liberty, or property), or proof beyond a reasonable doubt (with a right to a jury) that the right, if not disabled, would present a clear and present danger to public safety, under common law due process for competency. However, neither disablement is being done prior to prosecution under 18 U.S.C. § 922. That is or should be the issue.
10.7.2008 2:08pm
Malvolio:
It's not really any different from "Congress shall make no law" in the First Amendment, yet none of the first amendment rights are regarded as absolute and without exception.
"Shall not be infringed" seems to me to be a bit stronger than "shall make not law", but in any case, certainly not weaker.

Does anybody believe that forbidding a casual marijuana user from owning a licensed handgun would pass "strict scrutiny"?

Does anybody believe that forbidding a casual marijuana user from publishing a newspaper would be Constitutional?
10.7.2008 2:08pm
Jon Roland (mail) (www):
It should be further understood that, contrary to the addled idea of some in law enforcement, a defendant does not "lose all rights" upon conviction of a crime. The specific rights to be fitrst disabled, then deprived, must be explicitly sought as the relief in the criminal petition. Otherwise a judge could sentence a convicted defendant to death on a traffic violation.
10.7.2008 2:15pm
Cityduck (mail):

Does anybody believe that forbidding a casual marijuana user from publishing a newspaper would be Constitutional?


Have you read the "Bong Hits 4 Jesus" case?

The Second Amendment is no stronger in its terminology than the First Amendment, yet we countenance many many restrictions on the first amendment, including reasonable time, place and manner restrictions. There is no principled reason to treat the Second Amendment differently.
10.7.2008 2:21pm
tdsj:
Judge Crabb's decision is depressing for its total lack of analysis. Maybe 922(g)(3) is still constitutional, but certainly it's a harder question than she lets on. I'm not sure that there is a longstanding historical tradition of preventing drug users (or drinkers, during prohibition?) from possessing guns. If there is, Judge Crabb certainly didn't show us any evidence.

On the meaning of addict... it has been limited by case law to include only current addicts. The definition is something like "someone who uses drugs so habitually that they have lost the ability for self-control." So a recovered addict doesn't fit.

Given that limitation, it's impossible to be an "addict" without also being a "current user," so the addict provision is actually superfluous.
10.7.2008 2:41pm
tdsj:
"As this court noted recently, Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession."

Isn't that pretty circular?

"Heller did not address a state’s right to impose restrictions on handgun possession."

um... really?
10.7.2008 2:46pm
Dilan Esper (mail) (www):
In addition to the right to bear arms issue here, there's an interesting question about the addiction issue as well. The Supreme Court has held that a state cannot criminalize addiction, even to illegal drugs. (It can criminalize possession and sale, but not simply the state of being addicted to drugs.)

So while I can understand an enhancement for or crime of possessing a gun while using, possessing, or buying or selling illegal drugs, I would question whether, irrespective of the Second Amendment point, the state can criminalize possession of a gun while being addicted to an illegal drug.
10.7.2008 2:55pm
Oren:



"Heller did not address a state’s right to impose restrictions on handgun possession."



um... really?

Yes, really. In fact, Heller did not address the State's rights to do anything because DC is not a State.
10.7.2008 2:56pm
Kevin P. (mail):
Maybe I missed it but I could not find a single line in the opinion that justified WHY it is acceptable to take away the right to arms from unlawful users of controlled substances. This certainly includes millions of Americans who, in a non-violent manner consume marijuana or pain medication without permission from their benevolent government.

This opinion amounts to nothing more than "it is constitutional because it is obvious to me". Sad to say, a great deal of previous gun-related jurisprudence has been just like this.

If this is so obvious, how about:

People on pain medication.
People who have drunk cough syrup in the last 12 hours.
People on allergy medication.
People who have outstanding parking tickets.
... there are hundreds of such borderline cases. But the judge can't be bothered to state any kind of rationale.

Unfortunately, the Second Amendment is still embarrassing to the anointed.
10.7.2008 3:10pm
wandering by (mail):
I'm surprised there hasn't been more discussion of the government's right to ban gun ownership by individuals with a mental illness. In contrast with felons, mental illness isn't the result on one's own actions and in some jurisdictions, involuntary committment statutes are fairly broad.
10.7.2008 3:19pm
Gabriel McCall (mail):
The Second Amendment is no stronger in its terminology than the First Amendment, yet we countenance many many restrictions on the first amendment, including reasonable time, place and manner restrictions. There is no principled reason to treat the Second Amendment differently.


"what we countenance" and "what the language of the law requires" are not necessarily synonymous. I would argue that "Congress shall make no law" does not allow for federal TPM restrictions, and that if the people want those restrictions they should amend the Constitution to properly reflect their will.
10.7.2008 3:24pm
Malvolio:
Maybe I missed it but I could not find a single line in the opinion that justified WHY it is acceptable to take away the right to arms from unlawful users of controlled substances.
Bad as I think this decision is, I don't agree that it is the role of the judiciary to rule on the "acceptability" of a law, just its constitutionality.

A law provide for only a fine for felony murder would be constitutional (AFAIK), but it's clearly not acceptable.
The Second Amendment is no stronger in its terminology than the First Amendment
On its face, the First only restricts the actions of Congress; the Second is much broader. In practice, that distinction seems to have eroded.
10.7.2008 3:37pm
tdsj:
"Yes, really. In fact, Heller did not address the State's rights to do anything because DC is not a State."

Yes, but the incorporation point isn't the point that Crabb is making. (Since this is a federal prosecution, that would be beside the point anyway.) The point she appears to be making is: You have a right to possess a firearm unless the government imposes a limitation on that right.
10.7.2008 3:39pm
Dilan Esper (mail) (www):
On its face, the First only restricts the actions of Congress; the Second is much broader. In practice, that distinction seems to have eroded.

I made this point in another thread, but people who say this sort of thing don't realize the Bill of Rights was written as one document. So, the First Amendment says Congress shall make no law, and then the ensuing amendments discuss additional procedural protections without referring back to Congress. When we see it in the Constitution, neatly divided into 10 amendments, we don't realize that, but it's a limitation on federal power (until the Fourteenth Amendment was passed).
10.7.2008 3:51pm
Seamus (mail):
Honest question guys, the statute forbids firearm possession to anyone "who is an unlawful user of or addicted to ...". That seems (to an idiot like me) to imply a present-tense construction -- the prosecutor would have the burden to prove that the person was an unlawful user or addict at the time of firearm possession.

Well, I'm not toking up this moment, nor have I ever done so while purchasing or handling a firearm, so I guess I'm off the hook so far. But if, having once purchased a firearm, I should take a puff on the magic pipe, is that enough to make me a federal felon?
10.7.2008 4:12pm
Tom, some other one (mail):
Where is the congressional authority (amendment as was necessary for alcohol) authorizing congress to pass any laws and associated punishments for users of "illegal" drugs?

They have no authority, just as those prosecuting these people, to punish someone for a law that is unconstitutional.

If there is such widespread support for a war on drugs pass an amendment and legitimize all the drug laws.
10.7.2008 4:29pm
PubliusFL:
Dilan Esper: "I made this point in another thread, but people who say this sort of thing don't realize the Bill of Rights was written as one document. So, the First Amendment says Congress shall make no law, and then the ensuing amendments discuss additional procedural protections without referring back to Congress."

It was not ratified as a single document, though. It was presented as a collection of proposed articles, "all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution." The first two in fact were not ratified (although one of those was ratified many years later). If the third (now the First Amendment) had likewise not been ratified, the Bill of Rights would not mention Congress at all.

A better argument, perhaps, is that in Madison's original proposal most of the Bill of Rights would have been interpolated into Article I Section 9 of the Constitution as additional limits on the power of Congress, and that Madison proposed a few other amendments, not accepted by Congress, that would have explicitly restricted the states. I'm not aware that the shift from interpolated amendments to amendments appended to the end of the Constitution was accompanied by any discussion about how that change would affect which levels of government were restricted by the amendments.

Has anyone seen any good articles evaluating Barron v. Baltimore from an originalist perspective?
10.7.2008 4:48pm
Dilan Esper (mail) (www):
It was not ratified as a single document, though. It was presented as a collection of proposed articles, "all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution." The first two in fact were not ratified (although one of those was ratified many years later). If the third (now the First Amendment) had likewise not been ratified, the Bill of Rights would not mention Congress at all.

That doesn't matter, however, given that the meaning of the document really isn't dependent on the order of ratification (unless the ratifying states were deliberately intending to ensure that the rest of the Bill of Rights would apply to the states).

Has anyone seen any good articles evaluating Barron v. Baltimore from an originalist perspective?

Excellent question. Given the Fourteenth Amendment and the apparent settling of the incorporation debate, I suppose that's why people don't go back and comment on Barron.
10.7.2008 4:50pm
PersonFromPorlock:

The point she appears to be making is: You have a right to possess a firearm unless the government imposes a limitation on that right....

Close. I suspect it's 'You have a right to permission to possess....'
10.7.2008 5:01pm
Lior:
John Roland: it's one thing to say that, once convicted, felons lose the right to own firearms. It's a very different thing to say that the right was somehow lost before the felony was committed, so that the possession during the felony can be made a crime as well.

On a more general note, it seems to me that many courts are taking the cop-out "The Supreme Court has not said that the government is not allowed to do X; therefore this must be ok". Just because the Supreme Court has reserved the question to some other case does not absolve each court of its duty to adjudicate the controversy before it. In the case at hand, Heller said that, in principle, most laws criminalizing various forms of gun possession in use should still stand. However, each Court still has to explain why the particular law and facts it is facing are such that an exception to the Second Amendment general right is appropriate.
10.7.2008 6:23pm
Dilan Esper (mail) (www):
On a more general note, it seems to me that many courts are taking the cop-out "The Supreme Court has not said that the government is not allowed to do X; therefore this must be ok". Just because the Supreme Court has reserved the question to some other case does not absolve each court of its duty to adjudicate the controversy before it.

This is no cop-out. Lower courts are in a bad position when the Supreme Court reserves issues and doesn't announce standards of review, because they may get reversed if they guess wrong.

While there is something to be said for not including a bunch of dicta on cases not before the Court, there is also something to be said for giving lower courts guidance. Apparently Scalia didn't have the votes to give any guidance in Heller.
10.7.2008 6:40pm
Gabriel McCall (mail):
This is no cop-out. Lower courts are in a bad position when the Supreme Court reserves issues and doesn't announce standards of review, because they may get reversed if they guess wrong.

And if the lower court gets reversed, all those justices are fined 100 bucks and sent to bed without supper?

The court's job is to render the best ruling they can consistent with the facts and law available to them. If they get reversed, so be it. And if jurisprudence were easy, anybody could do it. Declining to think carefully about the question before you just because someone else might disagree with you if you come up with an answer of your own is exactly a cop-out.
10.7.2008 7:31pm
Dilan Esper (mail) (www):
The court's job is to render the best ruling they can consistent with the facts and law available to them. If they get reversed, so be it.

If you were paying legal fees for an appeal (which can be tens or hundreds of thousands of dollars), you wouldn't say that. And lower court judges are therefore rightly concerned about whether their decisions will get reversed.

This is why it is so important for the Supreme Court to tell us what they really think.
10.7.2008 7:54pm
Gabriel McCall (mail):
If you were paying legal fees for an appeal (which can be tens or hundreds of thousands of dollars), you wouldn't say that. And lower court judges are therefore rightly concerned about whether their decisions will get reversed.

Why should the litigants' legal fees be any sort of factor in the judicial calculus? The judge isn't on the hook for any of that money, and there are no performance incentives for low reversal rates. Sure, I want to get everybody out of my courtroom as happily as possible, but I don't see how "minimizing the litigants' legal expenses" can possibly be a higher priority for any ethical court than "rendering the correct decision".

And if I'm paying legal fees to hear a judge say "I'm not high enough in the food chain to have an opinion about that", then my thinking would be "Well quit wasting my time and money and let me talk to THEM, then." If you're going to worry about the cost of an appeal, then I'll counter with the cost of pointless precursor trials just to get to someone who feels competent to make a considered ruling.
10.7.2008 8:16pm
Dilan Esper (mail) (www):
Why should the litigants' legal fees be any sort of factor in the judicial calculus? The judge isn't on the hook for any of that money, and there are no performance incentives for low reversal rates. Sure, I want to get everybody out of my courtroom as happily as possible, but I don't see how "minimizing the litigants' legal expenses" can possibly be a higher priority for any ethical court than "rendering the correct decision".

Gabriel, the correct decision IS the decision that doesn't get reversed. And you are paying legal fees for a judge to render a decision that will stand up, because a judicial system that relies on the appellate courts to constantly correct lower courts is a legal system that costs litigants a lot more money.
10.7.2008 9:43pm
Melancton Smith:
Cityduck wrote:

The Second Amendment is no stronger in its terminology than the First Amendment, yet we countenance many many restrictions on the first amendment, including reasonable time, place and manner restrictions. There is no principled reason to treat the Second Amendment differently.


Most 'reasonable' restrictions on the First Amendment Freedom of Speech are restrictions on harmful use of speech.

We have many 'reasonable' restrictions on the Second Amendment where harmful use is involved: can't shoot someone (except in self-defense), can't fire a gun in a crowded theatre (except in self-defense)...

The problem is the type of restrictions that people such as Obama want are prior restraint. Can't own a handgun, for instance because you *might* choose to shoot someone.

An analogous restriction on the First Amendment Freedom of Speech would be to force theatre goers to have their mouths duct-taped shut to prevent them from yelling 'fire'.

The problem is, what if there really is a fire? Ditto what if there really is someone that 'needs killing'?
10.7.2008 9:52pm
Gabriel McCall (mail):
Gabriel, the correct decision IS the decision that doesn't get reversed.

If you equate "the correct decision" to "the decision that sticks", then it would be nonsensical ever to speak of the Supreme Court reaching an incorrect decision. There must be some external, objective standard (the law, perhaps?) against which a decision can be judged, or else all judgements are abitrary. Judgements which agree with the law are correct even if they are later reversed. Judgements which contradict the law are incorrect even if they are later upheld.

If an upper court and a lower court disagree, then one of them must be wrong. There's at least a chance that the wrong court is the upper one, unless you define "correctness" solely on hierarchy. And if you do that then you have the ridiculous result that a judgement can be correct when held by the lower court, then become (retroactively, I presume) incorrect at the appeals level, and then correct again if reversed by the SC.

And you are paying legal fees for a judge to render a decision that will stand up, because a judicial system that relies on the appellate courts to constantly correct lower courts is a legal system that costs litigants a lot more money.

I'm paying legal fees for the judge to render a decision in agreement with justice, equity, and statute. If he does that then he's done his job. If the appeals court reverses him, then my beef is with the appeals court.

If the lower court is correctly rendering correct decisions, then there should be no need for them to be heard on appeal and no reason for them to be reversed. If correctly-decided cases are being heard and reversed then the problem is definitely with the higher court.
10.7.2008 11:09pm
Oren:
Gabriel, the law is what the Court says it is, no more, no less. To pretend it has objective meaning outside legal interpretation is to engage in solipsism.
10.8.2008 12:46am
Brett Bellmore:

Gabriel, the law is what the Court says it is, no more, no less. To pretend it has objective meaning outside legal interpretation is to engage in solipsism.


Ewww! Legal "realism"! Somebody open a window.

Orin, it's understood that it doesn't do a lawyer a lot of good to be aware that the Supreme court's rulings are wrong, 'cause they're binding even if they are. It might even be dangerous, because if he's aware of both what the law is, and what the judiciary says it is, he might get them confused in court, and thereby lose a case.

So it follows that there's not a lot of point in people teaching law to admit that there's a difference between "law" and "court rulings", because it might cause their students to get into trouble.

But it must non the less be remembered that nobody is perfect, everybody is capable of being, yes, "wrong", even Supreme court majorities.

And, (I've remarked on this before.) this "we're right by definition!" attitude might work out just fine if the law was a closed universe, and only the opinions of lawyers mattered.

But it ain't, and there are all these folks who aren't lawyers, but who ARE capable of reading the Constitution, and occasionally a statute, and who don't have all that much reason to pretend that 5 Supreme court justices are incapable of error, and that the "true meaning" of laws snaps back and forth depending on which side of the bed one justice gets up on in the morning.

In short, go on praising the Emperor's new robes, you're a courtier, it's part of your job. But do try to retain some awareness that when winter rolls around, somebody's getting a royal case of frostbite if he ventures out of the palace.
10.8.2008 7:55am
Gabriel McCall (mail):
What Brett said. As a purely practical matter, of course we have to act as if the law is what the courts say it is, because that's the law that will be enforced. However, as I said before, if this were actually true in principle then the SC would have no external standard against which to guide their decisions, and could not possibly ever be wrong.

For that matter, a court of appeals would have no principled reason ever to overrule a lower court: if the law is nothing other than what the courts say it is, then there's no external standard against which to determine a lower court's decision incorrect. If you make a higher court's precedents that external standard, then that simply begs the question of why the prior case was escalated and what standard the appeals court used to decide it.

Also, "solipsism" means just about the opposite of your usage here. Solipsism is a rejection of any objective reality- your stance is closer to solipsism than mine.
10.8.2008 9:11am
Gabriel McCall (mail):
Each SC justice, when writing a dissent, makes the argument that the majority holding is incorrect. Such a stance requires that there be a standard of correctness other than majority agreement in the Supreme Court.

Since the justices have unanimously agreed, by dissenting, that the law has reality separate from SC decisions, the argument that the law is nothing other than what the SC says it is is incorrect by its own standard =)
10.8.2008 10:21am
Dilan Esper (mail) (www):
I think you guys miss the difference between the Supreme Court and lower courts. Lower courts are not at liberty to engage in free-floating analysis of what the law should be. They are REQUIRED to follow the holdings of higher tribunals.

So "correct", for a lower court, really is "whatever the Supreme Court and (for a District Court) my Circuit's Court of Appeals would rule on a given question".

This is why, again, the blame falls on the Supreme Court, not the lower courts, when the high court fails to elucidate a standard that is usable in deciding cases.

In a properly functioning system, the vast majority of cases are not appealed. Appeals cost money both to litigants and to the courts. For that to happen, you have to have the higher courts giving guidance to the lower courts and the lower courts following that guidance.

The court system you guys imagine would have to be a vastly expanded government bureaucracy that would operate at far greater costs to the taxpayers as well as the litigants. It would suck money out of our capitalistic economy to spend on taxes and transaction costs.

And no, nothing I say here is inconsistent with people's right to believe that the Supreme Court got things wrong. It just means we have to understand that the high court, right or wrong, is the final arbiter.
10.8.2008 1:31pm