Archive for February, 2008

William F. Buckley Jr.

February 29, 2008

William F. Buckley died this week. I never met him, but had reason to dislike him. Much of my career at the bar has been spent representing “little people” against big corporations in front of Republican judges who wouldn’t have been on the bench had it not been for Buckley’s success at cohering and modernizing conservatism in the United States. Without those conservative Republican judges looking down their noses at my clients, without them devising new ingenious ways to deny jury trials to American citizens, I would have made a lot more money. Perhaps I could even have hired my own cook and converted to Republicanism.

But how could I stay mad at a man who when asked what he would do if he actually won his race for mayor of New York City responded, “Demand a recount.” Or, when he found Dwight Eisenhower insufficiently conservative in 1956, nonetheless endorsed him in his magazine with the words, “We prefer Ike.” Or, in one of his Blackford Oakes spy novels — every one of which I read and enjoyed — has a fictional KGB agent refer to William F. Buckley as a “young bourgeois fanatic.” Or hired a young David Brooks after Brooks skewered him in his college newspaper. (Do not miss Mr. Brooks column in today’s New York Times. Some conservatives have highly developed senses of humor.) Or a man who, when asked how his life might have been different if he had been born a woman, thought for a minute and responded, “I would have seduced John Kenneth Galbraith [liberal economist and Buckley friend] and saved the world a lot of misery.” Or had a perpetual look of mischief about him, inducing David Remnick to write of him, “He has the eyes of a child who has just displayed a horrid use for the microwave oven and the family cat.”

Or who so obviously enjoyed living.

In all the encomiums he received this week, people all across the political spectrum agree that he made the current conservative ascendancy possible. He is given much credit for making the presidency of Ronald Reagan possible. His acolytes are all over the place, declaiming about the proper uses of power and using it. To my chagrin, they have seized control of the federal judiciary and are unlikely to relinquish it for a generation.

Had Buckley been born poor, it is less likely his great intellect would have led him to conservatism: Intellect follows calories. But he was born to great wealth accumulated by his father in the Venezuelan oil fields. He was once asked in an interview if his wealth and privilege cut him off from the common man. He denied it because, he said, he read. His response was — paraphrased — “One did not experience personally the Roman Empire, but one knows of it from reading about it.” But he did not live like the rest of us. He had yachts, a villa in Gstaad and cooks, among other advantages and comforts of wealth. His inability to fathom that modern corporate conservatism hindered the lives of others was a blind spot as were Joseph McCarthy and segregation.

But he was right about much. Taking his yacht into international waters off the East Coast of the United States so it would be legal; he experimented with marijuana and concluded that the War on Drugs was silly and lost. Watching the mismanagement of the war in Iraq, he concluded it was a mistake to have started it. His analysis of communism was precise, correct and percipient.

His conservatism was not of the wrathful variety. Hugh Kenner, one of the many conservative writers from the National Review gave him credit for creating respectable conservatism by driving away the John Birchers, the anti-Semites and other kooks. That the angry kooks have snuck back into the movement probably caused Mr. Buckley discomfort as did grandiose neo-conservativism.

He was a sesquipedalian, sometimes pleonastic writer and talker, a
roborative involucrum for conservatives, a vaticinating troublous thorn for liberals and a happy warrior.


UPDATE: March 1, 2008

Today’s Washington Post has an article about someone from the other side of the political spectrum, Maury Maverick, Jr. on what it takes to be a political maverick. You can read the article here. Maverick did not have the blind spot about Joseph McCarthy that Mr. Buckley did. When his colleagues in the Texas state legislature drafted a resolution inviting McCarthy to come deliver a speech to them, Maverick introduced another one, inviting Mickey Mouse saying, “If we are going to invite a rat, why not a good rat?” John F. Kennedy stopped by the Alamo when he was campaigning for the presidency in 1960. Running late to his next campaign stop, Kennedy asked Maverick if they could slip out the back door. Maverick responded, “Senator, there is no back door. That’s why they were all heroes.”

I wonder if Maverick and Buckley knew one another? I expect they would have appreciated each other’s sense of humor if not political views.

A reader reminds me of his favorite Buckley quote. When asked, “Why do we always see you sitting down during interviews,” Buckley licked his lips and said, “It is difficult to stand with the weight of all I know.”


Montaigne on the Law of Standing

February 25, 2008


I’ve been reading around in some of the great essayists of the past in order to improve the writing of the short essays required of one who keeps a blog. Or is kept by one, which is sometimes how it feels. A blog is a hungry beast and it is amazing how quickly a few days pass without feeding it. Like the bird feeders in the backyard, attention must be paid.

One of the essayists I’ve been dipping into is Montaigne. Last week, when I began a series about the legal concept of standing and how handy that concept is for judges who wish to shut the courthouse doors to lawsuits they dislike, I mentioned the fact that American courts have thus far refused to allow animals, trees, rivers and the like to be represented in court. Only humans and non-living corporations are allowed in our courthouses. Montaigne wrote an essay entitled “On Cruelty” — more than four centuries ago — in which he decried the use of cruelty and torture. Montaigne would have had little patience with the current “debate” about torture. He would have said that we should not use the word “debate” at all since it implies there exists an argument which can be made that it is acceptable to torture or otherwise intentionally inflict pain on another sentient being. Montaigne recognized it as one of the most heinous of sins.

But, back to our discussion about no one but humans and corporations allowed representation in our courts. Here is Montaigne on the point:

. . .there is a kind of respect and a duty in man as a genus which links us not merely to the beasts, which have life and feelings, but even to trees and plants. We owe justice to men: and to other creatures who are able to receive them we owe gentleness and kindness. Between them and us there is some sort of intercourse and a degree of mutual obligation.

I would go a bit further; we may owe justice to all of nature, of which we too are a part.

If you don’t agree with me that other beings ought to have standing in our courts, don’t worry. As I’ve noted before, a long and unbroken line of U.S. Presidents have failed to appoint me to the Supreme Court and there is no reason to think any of the current candidates will break the chain. Sigh. It would have been enjoyable to dispute with Justice Scalia the issues of our day.  And attempt to persuade four other members of the Court that trees ought to have standing.


The Aspen art above is by Charlie Harper who was the subject of a CBS story a few weeks ago. You can read about him here and here and the CBS story here.

Global Climate Change

February 21, 2008

It has been quite awhile since we’ve received a letter by mistake from the Flying Derricks but we got another one today. Obviously, Mr. Blane is responding to a solicitation offering him the opportunity to contribute to some organization that believes that global climate change is a hoax. We, of course, sent the letter on but, since we had already inadvertently read it, we didn’t see any harm in sharing it with you.


Fred Smith
Competitive Enterprise Institute
Washington, D.C.

Dear Fred,

Thank you so much for the opportunity to send you a bunch of money to keep the world safe from them tree-huggers. This nonsense about how the world is getting warmer is starting to get on my nerves although I got to tell you we sure could use a little rain out here. Especially up on the North 40 which is about to dry up and blow away. Been unusually hot the last several years so I was glad to get your letter promising that this drought doesn’t have nothing to do with the earth heating up. Sure do like your motto: “Carbon dioxide: Some Call it Pollution; We Call it Life.” Man, that is good. Whoever thought that up might want to get into an advertising career. They actually get paid for thinking up good propaganda like that.

You’d think the media would not swallow this “global warming” bunk from Al Gore. What’s he ever done?

But, as I always say, “the medium is the tedium” which rhymes, do you see? (Back in grade school I won a poetry contest so I keep writing little rhymes like that to keep my hand in.)

Anyway, them Commie tree-huggers, as you wisely note, are trying to stop freedom and freedom of commerce. We figured out to make carbon dioxide and there ain’t no reason to stop now just when we’re getting warmed up. (“Warmed up.” Get it? That’s pretty good, even though I say so my own self.) The business of America is business, just like Calvin Coolidge used to say. (Did you know him Fred? Fine man. Never wasted a single word.) Those environmentalist people almost make you hope that global warming really is real and that the whole place will end up in the hands of the cockroaches. ( I know, cockroaches don’t have hands. That was just a figure of speech like I used to use when I was writing poetry.)

But right now I just can’t afford to send you the $10,000.00 although that sure is generous of you to offer to accept my money. I’ve got to save all my money for my own research and marketing. I’m gonna sell machine guns, bazookas and small personal-use neutron bombs. I’m working on one of those now which I hope to have ready for the free market by this time next year. They won’t be cheap but you can’t put a dollar value on peace of mind. What you’ll be able to do when you buy one, Fred, is remotely detonate the bomb from inside your lead-lined bedroom anytime a criminal breaks into to your home, which is probably pretty often seeing as how you live back there in the District of Colombia which is a high-crime area. Couldn’t get me to live back there for love or money, at least not until I perfect my neutron bomb which will kill intruders just as dead as doornails but won’t so much as break anything in your house which I bet is full of lovely things which you need to protect. Since I know you are going to want one, I’ve taken the liberty of adding you to my mailing list. I’ll notify you as soon as they are ready for sale. The notification will come in an envelope with a nifty four-color brochure which will set out the various payment options.

Remember our new motto, “Neutrons: Some People Call Them Radiation; We Call Them Self-Defense!”

God Bless the Second Amendment and God bless you Fred! I’m gonna put in a good word for you next time I talk to George, our president, who I’ve known since he was knee-high to a grasshopper. Some folks around here didn’t think he’d ever amount to a hill of beans and look at all he’s got done in his life. And them media types pay all that attention to Al Gore. Hell, Al Gore never was president of these United States which just goes to prove that global warming is a hoax!

Hondo Blane


This organization is real.  Once it was funded by Exxon but news stories indicate that even Exxon quit sending it money.  It really believes that global climate change is a hoax.  Its “commercial” can be seen here.

The Story of Manon Lescaut

February 18, 2008

We attended the Metropolitan Opera’s movie theater broadcast of Puccini’s opera Manon Lescaut over the weekend. For those of you who don’t know, the Met is broadcasting — in high definition — its productions into selected movie theaters across the nation. You can read about them here. They are fantastic.

The story of Manon Lescaut is simple: boy meets girl, girl dumps boy for rich dirty old man, then girl dumps dirty old man for the boy, the dirty old man has her arrested for prostitution, girl and boy are sent to the wilderness. If I were a person of good character I would stop there and not inflict the entire story on you.

The proceedings begin at an indoor-outdoor bar in Amiens, France. Since this is opera, the customers, presumably all French, speak Italian. Suddenly — everything in this opera happens suddenly — the most handsome stud you ever saw walks into the bar. He is a student and he’s depressed. He needs a girlfriend.

Suddenly a coach arrives, carrying three people. One is an ugly old man, made even more repulsive by the fact that he is a rich tax collector, the Treasurer-General of France; another is a young rake who cheats at cards; and the last is the cheater’s sister, Manon Lescaut, the heroine of these proceedings. She is stunningly beautiful and our young man falls for her at first sight. He chats her up, discovers that she is bound for a nunnery and convinces her to run off with him instead. He must be a prodigious persuasive man; she agrees even though he hasn’t said more than 30 words to her. And that in Italian, even though they are both French. Maybe she thinks he is offering her a ride to the nunnery. He doesn’t even tell her his name which, by the way, is des Grieux.

But before she runs off with this total stranger, the ugly tax collector decides to kidnap her. His name is Geronte di Ravoir. No reason is given for this sudden descent into criminality by the rich old man. Maybe he lusts for her and thinks that kidnapping her is the only way he can get her into bed. Boy, is he wrong. It is much easier than that.

Our young hero foils the disgusting old man by running off with Manon first. This outrages the old tax collector, but Manon’s brother, the card shark, doesn’t seem to mind and tells the old man that des Grieux will take her to Paris where she will soon get bored with him because he is poor.

Act One concludes.

Act Two opens with Manon in her bedroom; seated at her dressing table, discussing her beauty while getting all decked out in fine jewelry amid the luscious trappings of great wealth. The innocent, bewildered audience slowly realizes that Manon now lives with Geronte, the ugly old tax collector. She’s in his house, singing about how beautiful she is! How this happened or why, we are not told; but during the intermission Manon dumped the stud-muffin and married Geronte, a/k/a, the dirty old man. (That’s her on the floor in the picture. She is doing the splits on account of she just hit a high “C.”)


Manon’s brother, the card-cheater, shows up in her bedroom. We learn that he has befriended our hero, des Grieux and taught him to cheat at cards so he can get rich and get Manon away from the tax collector.

Now we know why Manon lives with the tax-collector: It’s the money. Why des Grieux would still want the gold-digging hussy is a mystery.

But des Grieux, who in the first act was a persuasive and smart student, has become a dimwit. It never occurs to him that Manon’s brother must have set her up with the old man or that her brother knows where she is or that there are better ways to make a living than cheating at cards.

Manon’s trouble-making brother decides to bring our hero to Manon’s bed room. This is a bad idea. Des Grieux forgives Manon, they embrace and fall on her bed which, of course, is the precise moment her husband walks in. The jilted man calmly turns around and leaves. Manon and des Grieux get back to kissing and singing but her brother rushes back to tell them that Geronte has called the cops who are on their way to arrest Manon for prostitution. Which, when you think about it, is a charge that will likely stick.

Fortunately, there is plenty of time for the lovers to make their escape. Unfortunately, Manon wastes it all; frantically scurrying around the room collecting all the jewels. Our hero, so persuasive in Act One, can’t convince her to stop. The police arrive and arrest Manon. They don’t bother with des Grieux, probably because of his decline into imbecility.

Act Two ends.

Act Three finds Manon in prison about to be deported to America. She is destitute, having forgotten to take the jewels with her at the end of Act Two. Her inept brother has hatched an escape plan. This goes awry because he brings des Grieux along to help. He and Manon spend too much time singing about how much they love each other; the Gendarmes arrive, and our hero unaccountably lays down his perfectly good sword without so much as a riposte to protect his love. The prostitutes are loaded on the ship and des Grieux begs to be taken aboard too. The ship’s captain agrees.

Act Three ends.

Act Four is the last act and, if you think any of this nonsense will suddenly make sense, you are going to be disappointed. We are in the Louisiana Desert. Yes sir. The Louisiana Desert. Does it matter that Louisiana doesn’t have a desert? No. Geography wasn’t Puccini’s strong point. A man who has all of France speaking Italian can’t be bothered with trifling details. Puccini is a “big picture” man.

Manon is dying of thirst out there on the Louisiana Desert where, in real life, you can hardly take a step without getting your feet wet. Or maybe she is dying of cold or fever or exposure; it is never clear which. And let me tell you, she takes a powerful long time to die. She sings and sings and sings. But I will say this for her, she stays true to her character all the way to her death. She is as mindlessly narcissistic at the end as she was at the beginning. In what is the next to last sentence she will ever speak she asks des Grieux to tell her how beautiful she once was. The only useful thing that dunderhead does during the entire last act is take off his cloak and cover her legs with it. Does he cover her upper torso with it like any sane man? No, he just puts it over her feet. But Puccini doesn’t care, he just wants her dead and, by now, so does the audience.

Three centuries before this tripe was composed, Shakespeare said about it, “This is the silliest stuff that I ever heard.” [1]


[1]A Midsummer Night’s Dream, 5.1.208


February 16, 2008

Standing, Part I

If you are a judge on a Supreme Court and you want to keep pesky lawsuits out of court, one way to do it is to decide that people bringing lawsuits lack “standing.”  “Standing,” when used as a legal term of art, requires someone bringing a lawsuit to have a sufficient interest in the outcome to be allowed to sue. Consumers often lack “standing” to sue price fixing corporations because they bought from a middle man and not the price-fixers themselves.  Taxpayers can’t sue the government about government expenditures because the interest of the individual taxpayer is too small.

Corporations, which aren’t real, almost always are allowed to sue; even though they are only fictions.  Many real things lack standing and thus cannot protect themselves in a court of law.  Whales off the coast of California lack standing so they cannot sue the Navy for blasting them with sonar so loud it actually kills some of them.  Trees, in one of the fine ironies of legal language, do not have “standing” and so can’t sue to prevent themselves from being cut down. A river can’t sue a corporation no matter how much that corporation pollutes it.  We’ll explore this in more detail in subsequent posts.

Issues of “standing” can lead to metaphysical questions like the ones asked in this poem by Mary Oliver.

Some Questions You Might Ask

Is the soul solid, like iron?
Or is it tender and breakable, like
the wings of a moth in the beak of an owl?
Who has it, and who doesn’t?
I keep looking around me.
The face of the moose is as sad
as the face of Jesus.
The swan opens her white wings slowly.
In the fall, the black bear carries leaves into the darkness.
One question leads to another.
Does it have a shape? Like an iceberg?
Like the eye of a hummingbird?
Does it have one lung, like the snake and the scallop?
Why should I have it, and not the anteater
who loves her children?
Why should I have it, and not the camel?
Come to think of it, what about maple trees?
What about the blue iris?
What about all the little stones, sitting alone in the moonlight?
What about roses, and lemons, and their shining leaves?
What about the grass?


Commas and the Law – The 2nd Amendment, Part VIII

February 13, 2008

47 amicus briefs against the D.C. ban on handguns were filed in the Heller v. D.C. case before the Monday deadline. Of necessity, the summaries here and in the next post in the series, represent only the tip of that iceberg. All the briefs are here.


One thing all these briefs for Heller proclaim is the need we all supposedly have to keep guns in our homes for self-defense. This is largely an urban myth. The odds of being attacked in our homes are about the same as winning the lottery. However, even if it were possible to dismantle that emotionally-based myth, the legal question would remain. Just because a man does not need a gun does not mean he has no right to have one. Nor does it address his right — or lack of one — to keep guns for hunting or target shooting.

A moment of disclosure here: As far as I am able to discern, I don’t have an emotional dog in this gun control fight. I grew up in a home fathered by an avid hunter and lifetime member of the NRA. I share with many hunters a love of the outdoors but am not a hunter myself. I have slept many nights in homes with guns and many nights in homes without guns and slept soundly in both. In addition, I believe that the Court’s eventual decision, no matter what it is, will have no practical real-world impact. More on that in a subsequent post when I assay my own prediction about what the Court will do.

Another common thread in the briefs is the assumption that the first clause is only a “preamble.” So far, I’ve read only two of the Heller briefs that dig deeper. Of those, only the brief of Professor Lund on behalf of an organization called The Second Amendment Foundation, devotes any time to the grammar of the Amendment. (Professor Lund has written before about the 2nd Amendment and he frequently cites himself as the authority for the propositions he asserts. However, his immodesty does not mean his arguments are wrong.)

But before he wades into the grammar wars, he too begins by declaring the first clause a preamble and then wastes no time telling the Court that we need to have guns to protect ourselves from violent criminals.

The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies. The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.

But after that “preamble,” to his brief, Professor Lund meets directly the arguments of the English professors which I summarized here.

Still referring to the first clause as a “preamble,” he agrees that the clause is an “absolute phrase” grammatically independent of the second clause but then asserts, “Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended.” It is “self-evident” that the “preambular phrase” is just one reason for guaranteeing the right to keep and bear arms. Because the clause is independent, it modifies nothing in the second clause. The English professors are wrong. The absolute clause does not affect the “operative” clause. Their “self-evident” interpretation is wrong while Professor Lund’s “self-evident” interpretation is right.

Professor Lund continues:

Another very significant grammatical feature of
the Second Amendment is that the operative clause is
a command. Because no word in that command is
grammatically qualified by the prefatory assertion,
the operative clause has the same meaning that it
would have had if the preamble had been omitted, or
even if the preamble is demonstrably false.

Even if it could be proved that disarming the people is necessary to maintain the Republic, the government could not do it constitutionally.


The other brief that I have read — thus far — which discusses the grammar is that of an Alabama organization named Foundation for Moral Law, a foundation dedicated to “defending the Godly principles of law upon which this country was founded.”  “Our God-given freedom starts with the natural right of self-defense,” according to the Foundation.

The Foundation has a slightly different take on the first clause and discusses the commas specifically.  According to the Foundation’s brief, “The clause containing the militia language is a dependent clause, while the arms-bearing anguage is located in the independent clause. . . .”  Thus the second clause can stand on its own, but the first clause, “. . .only forms a complete thought if coupled with the main focus of the compound sentence—the “right to keep and bear arms.” The function of the first and subordinate clause is to explain why the right must be protected; not to qualify it.

Of most interest, the Foundation discovered that the first and third commas were omitted when the 2nd Amendment was actually printed in the Statutes at Large of the United States  indicating:

. . . that the second comma was grammatically necessary to set off the two major parts of the amendment, while the other commas represented grammatical quirks of the time.

Everyone agrees it is just simpler to ignore the first and third commas.

Snails of the Old West

February 8, 2008

All this writing about guns and the 2nd Amendment takes one back to those thrilling days of yesteryear and those thrilling posse chases.  Here, from the New Yorker one such chase.  Don’t miss it, it takes only a few seconds to watch.

Click here.

Commas and the Law, Part VII – Brief for Heller

February 5, 2008

If I had known how much writing this 2nd Amendment case would entail, I would have picked a different case to illustrate how judges decide cases. But now it’s too late. I promise to write about other things between now and the time Heller v. D.C. is decided. (As always, if you have the time and interest, I encourage you to read the briefs themselves; I don’t pretend that these short summaries do them justice. Also note that I have herded them into a new category, [2nd Amendment, over on the right side of this page] so you can find them more easily.)
The chief brief opposing the D.C. ban on handguns was filed yesterday so it is time to add it to our summary. You can read it here. The Washington Post covered the filing of this brief. The article is here. Surprisingly, the brief is not as well crafted as expected. More about that later. First, here is a synopsis of what it says.

Or doesn’t say. The word “comma” does not appear. The writers begin with the assertion that the first clause is a “preamble” and go from there:

The Amendment’s structure and etymology are
not overly mysterious. The first clause, referencing
the importance of “[a] well regulated Militia,” provides
a non-exclusive yet perfectly sensible justification
for securing the people’s right to keep and bear
arms. In any event, the Second Amendment’s preamble
cannot limit, transform, or negate its operative
rights-securing text. . .

By its own terms, the rationale of the Second
Amendment’s preamble is not exclusive. The operative
rights-securing clause is grammatically and
logically independent of the preamble. Skilled diplomacy,
a powerful army, or adherence to the constitution
may sufficiently provide for “the security of a free
state,” and still the people would enjoy their right to
arms. Most critically, the preamble cannot contradict
or render meaningless the operative text.

After its assertion that the first clause is a “preamble,” the brief cites a venerated legal rule that “preambles” don’t count unless something in the text itself is ambiguous. Because nothing in the second clause is ambiguous, the first clause is surplusage to be ignored. In addition, the “operative text” of the amendment is consistent with the “preamble;” therefore, the D.C. ban is unconstitutional.

Meeting D.C.’s argument that the words “bear arms” mean “military arms,” the opponents of the ban argue that those words also carried a civilian connotation in the eighteenth century. Their best example: In 1785 James Madison introduced in Virginia’s legislature a bill authored by Thomas Jefferson entitled “A Bill for the Preservation of Deer.” The bill outlawed “bearing of a gun” outside of a person’s “inclosed ground” unless the person was “ performing military duty.” An individual could bear arms without being a soldier or a militiaman. In addition, the second clause says, “keep and bear arms.” Mr. Heller’s lawyers insist that “keep” has no military connotation and must be used, “in the ordinary sense of the verb: to possess at home. “Keep” transforms any military connotation of “bear arms.”

For example, “Mary knows how to
stir the pot” conveys a meaning (i.e., cause trouble)
very different from, “Mary knows how to hold and stir
the pot” (i.e., cook).

This interpretation, according to Mr. Heller’s lawyers, is consistent with colonial history. The colonists revolted, in part, because of British attempts to keep guns out of their hands. The 2nd Amendment was a reaction to those attempts.

The D.C. ban also fails, according to the brief, because handguns have a reasonable relationship to militia service and were in common use at the time of the adoption of the 2nd Amendment.

Feeling dissatisfied with this summary of the most important brief the opponents of the handgun ban will file, I re-read it. The fault is not all mine. Rounding up the key points in this brief is like herding cats; something not even my Border Collies will try.

With two notable exceptions, most of the arguments one expected are in the brief, but it is work to find them. Judges don’t like briefs that make them work. Before he became Chief Justice, John Roberts was thought to be the best appeals lawyer in America. In no small part, that was because he took great pains to organize his briefs so that judges did not have to hunt through them to find his best arguments. His arguments were cogent, clearly expressed and easy to find. Moreover, he left out sarcasm and overblown examples and rhetoric. This brief does not. In addition, the brief contains material that could have been left out. Like this post, it is too long.

But, if you are against the D.C. handgun ban, I wouldn’t worry too much. The amicus briefs are coming and I am certain they will be better examples of the brief-writer’s art.

What are the two notable exceptions? First, the bald assertion that the first clause is a “preamble.” The entire case could rest on how one characterizes that first clause and this brief makes no attempt to demonstrate that it is really a “preamble” or respond to arguments that it modifies the second clause. It just declares it a “preamble” and plunges on. That is no way to get Justice Kennedy’s vote. (Or Justice Breyer’s; and, if I was a lawyer in this case, I would not be taking him for granted.) Second, the word “keep” in the second clause may be more important than the brief implies. “Keep”deserved more attention.


UPDATE – 02/08/08

The first ten amici briefs opposing D.C.’s handgun ban are available here. More will come on Monday, which is the due date for the briefs.  I don’t have time to read and summarize them today — I have a life, you know – but I’ll tackle them over the weekend.

Update 02/07/08

We see what we want to see. Dave Kopel of the conservative law professors’ blog, The Volokh Conspiracy disagrees with me. He and the people who have commented on his post on Heller’s brief think it is a fine brief and an excellent example of the brief writing art. Here is his post.

Commas and the Law, Part VI – the 2nd Amendment

February 4, 2008


The briefs opposing the District of Columbia’s ban on handguns are due in the Supreme Court today. Before being deluged in those, I thought it time to summarize the brief of the English professors in support of the ban. The opponents will no doubt bring in their own grammarians and I will summarize those before the argument, scheduled for March 18.

You can read the proponent English professors’ brief here and I recommend it. The quality of briefing in this case is high and likely to remain so.

Although it takes them 15 pages of argument to get there, the English professors who weighed in on the side of the D.C. handgun ban conclude — expressed in the abstract language of mathematics — that the 2nd Amendment says: “Because X is necessary, Y shall not be infringed.” Because we need a well-regulated militia, the people shall be allowed to have the weapons necessary for service in such a militia.

Here is what the professors have to say about those three commas:

The Amendment’s first and third commas signal a pause
for breath and can be omitted without affecting the
meaning. The second comma, however, marks the customary separation of an adverbial clause from a main clause.

Inserting commas for breathing, not for grammatical meaning was common in the eighteenth century. For an example the professors give us Article III, Section 1 of the Constitution. “The judicial power of the United States, shall be vested in one Supreme court.” Some English punctuation was still in its Petri-dish stage at the time the Constitution and Bill of Rights were penned.

With the first and third commas demoted to breathers what remains is an absolute clause modifying the main clause in much the same way adverbial clauses modify main clauses. Finally, we get to the Latin:

Historically, the nouns in absolute constructions appeared in the dative case in English or the ablative in Latin, on which the English absolute was modeled. Those cases overtly marked the absolute phrase as subordinate to the main clause of the sentence.. . . .Alexander Adam, The Principles of Latin and English Grammar 213 (4th ed. 1793) (stating in connection with the Latin ablative, from which the English absolute construction derives: “The ablative called absolute is governed by some preposition understood; as, a, ab, cum, sub or in.”).

To argue that the first clause does not modify the second and is grammatically completely independent; modifying nothing, as some English professors have argued, reduces the Amendment to the nonsense statement:

“Because X is necessary, Y shall not be infringed; but the fact that X is necessary is not the reason that Y shall not be infringed.”

In other words, the professors assert, the D.C. Circuit Court of Appeals was grammatically wrong when it ignored the first clause. Grammar rules, like words, have meanings and judges attempting to discern those meanings may not ignore words or the rules of grammar.

Additionally, they argue that the words “bear arms” always meant “military arms,” an argument to which we will return after all the briefs are filed.

For now, my ship having arrived, it is time for me to depart.


February 3, 2008

We’ve been way too serious about grammar around here lately. In view of the fact that we’ll be getting back to the 2nd Amendment’s grammar this week, we thought it time for a short break.

On CBS this morning was a story about a nature artist we like, Charley Harper, who was a fine punnist, if we may be allowed to coin a word. A good blog, FatFinch, posted this piece about Mr. Harper which we offer here to lighten your day. It is cold and cloudy here so we felt a need. We use it with their permission.

Punning has an undeserved unsavory reputation. Alexander Pope thought that a man who puns also picks pockets. O.W. Holmes, father of the famous United States Supreme Court justice, accused people who pun of being like wanton boys who put pennies on railroad tracks. (Holmes obviously was stealing from King Lear, “As flies to wanton gods. . .” )
Never mind. We agree with Charles Lamb who opined that a pun is a noble thing and that those who dislike them are “ill-natured.” Boswell thought them among “the smaller excellencies of lively conversation.” Shakespeare used them so often that Samuel Johnson accused him of having the vapours.
We recently re-watched the movie Master and Commander — your author is a great fan of Patrick O’Brian and has read the Aubrey-Maturin series twice already. Here from the movie:

  • Captain Aubrey: “Do you see those two weevils, Doctor?…Which would you choose?”
  • Dr. Maturin: “Neither. There’s not a scrap of difference between them. They’re the same species of Curculio.”
  • Captain Aubrey: “If you had to choose. If you were forced to make a choice. If there were no other option.”
  • Dr. Maturin: “Well, then, if you’re going to push me. I would choose the right-hand weevil. It has significant advantage in both length and breadth.”
  • Captain Aubrey: “There, I have you!…Do you not know that in the service one must always choose the lesser of two weevils?”
  • ________________________
    pub_crow_snow.jpgYou have to love a man who, after creating this crow in a snow field, says of it:

    Crows are black birds and blackbirds are also, but a crow in the snow is so much the more so. If you’re pro-crow you proclaim his intellect, his resourcefulness, and the visual poetry of his somber silhouette on the calligraphy of the cornfield. But if it’s your cornfield, you have good caws to compose creative crowfanities when he arrives. Think of it as sharecropping: he gets the grasshoppers, you get the corn, and the few ears missed in the harvest are held in, well–escrow.

    We sell his cards in our store and many of them have similar funny, punny descriptions.

    Ready to send your Valentine’s Day cards? Here is “Vowlentine.”


    Or how about “Herondipity?” On the back of this card we learn that male and female herons are almost identical which means it is easy to be “herroneous” when guessing their gender.


    Here is his “Wings of the World.” If you are a birder, see how many you can identify. If you are not a birder, see how many you can count. Birder or not, you can revel in the art.


    If you are interested, follow the instructions on this poster, “Visit Our Website.”visit-my-web-site-u.jpg

    Mr. Harper was an artist of nature, most often birds. He died last year. Mr. Harper got his full quotient of years on the planet, dying at the age of 84 and leaving behind a large body of joyous, modernistic nature art.

    He was John J. Audubon and Louis Agassiz Fuertes, updated. Calling himself a “minimal realist,” he reduced his subjects to the simplest visual terms he could. He said of himself that he counted only wings, not feathers when he drew. According to him, he was a lousy birdwatcher.

    I found a bird guide by Don Eckelberry and realized that was all I needed–those birds didn’t move. I’m the world’s worst bird watcher. That’s my dirty little secret. I do all my bird watching in bird guides.

    Which is better than shooting them, like Audubon did, you have to admit.

    Born on a farm in West Virginia, he spent most of his life in Cincinnati. His publishing career started in the 1950’s when his illustrations appeared in Ford Times. His writing started at that magazine as well when he took over the job of captioning the little magazine from E.B. White.

    He put his art in the service of nature. Here is a poster he did for the National Park Service.

    Here is “We Think the World of Birds” a work he did for the Cornell Ornithological Laboratory.


    Of this piece he said,

    It occurred to me that I could make the world the shape of an egg, and then make the trees upside-down eggs–a visual pun. After that, there was just the matter of putting in the birds.

    According to an interview at the Cornell site, this was one of the works of his life that most pleased him.

    You can find examples of his work on our web site, on the web and in Beguiled by the Wild: The Art of Charley Harper, 1994, Flower Valley Press, Gaithersburg, Maryland.

    We were blessed to have him. Here is his 1982 serigraph Tern, Stones, and Turnstones
    Terns and Turnstones

    Here is what he said about it:

    If you’re terned off–I mean, “turned” off–by puns, don’t go away. The ol’ punster has terned (make that “turned”) over a new leaf. I promise not to punctuate this paragraph with such punishments as no stone unterned, no U-terns–no more awful puns. Just the facts: a Roseate Tern and some Ruddy Turnstones share a pebbly beach along the ? WAIT! I CAN’T STAND IT ANY LONGER! Ternabout’s fair play. No terning back now. The ol’ punster has passed the point of no retern.

    He has indeed. For the rest of us, his death was a tern for the worse.


    Update: Febuary 3, 2008. CBS did a story about Charley Harper and Todd Oldham this morning. We posted the link here.