Archive for July, 2010

How the Supreme Court Learned to Stop Worrying and Love Guns

July 31, 2010

As we discussed last time, the Supreme Court’s latest gun decision in the case known as McDonald v. The City of Chicago, decided that the Second Amendment applies to the states as well as the federal government. Remember that two years ago – for the first time in the Nation’s history – the Court decided that the Amendment guaranteed an individual’s right to keep and bear arms, even though that individual never wore the uniform, never served his country under arms, and was never in the militia.(Or even the Texas Rangers.)

For the last two years the federal government has had no right to prevent you from keeping guns in your home. Now no state government can prevent it either.

Of course, before the ruling, most states already had their own constitutional provisions that protected your right, but now even if the citizens of your state voted to outlaw guns in your home, the Supreme Court would strike down that democratic decision.

Not that any such thing is likely to happen anytime soon. About 80% of Americans currently believe that we have a right to have guns in our homes.

So the federal Second Amendment now applies to the states and their towns and cities. The state of Illinois cannot stop its citizens from keeping guns in their homes, therefore, neither can Chicago, a political subdivision of Illinois.

But why? Why is the Second Amendment incorporated against the states?

Citizens Bearing Arms - Daniel Boone and Mingo

The answer demonstrates, as clearly and cleanly as Euclid could have, that the current Supreme Court is an activist court, at least when the five most conservative justices emotionally involve themselves in the outcome of a case.

Here’s why. Although the Court mustered a majority vote to apply the Second Amendment to the states, it did not muster a majority explanation of why. Of the two possible reasons to apply the Amendment to the states, both lost. One lost five to four and the other lost eight to one. Chicago should have won.

But five justices wanted a particular outcome and they voted for that outcome, even though they could not agree why.

“But wait,” I hear you say, “that’s not how it’s supposed to work.” And you are right. According to Chief Justice Roberts, judges are just umpires, calling balls and strikes, based upon their careful analysis of the law. They don’t care about how a case turns out, only about the legal reasons that require a result.



In the next post we’ll explain how Chicago lost this case. We’ll look at the most interesting of all the opinions in the case, that of Justice Thomas. We’ll call the post, “The Privileges and Immunities of United States Citizenship or How the Supreme Court learned to Stop Worrying and Love Beef!”

In meantime, here -with sound- is the opening theme of the 1950s television show, “The Texas Rangers.”

The Texas Rangers


The NRA Rides Off into the Sunset

July 26, 2010

You’ve been very patient and by now you know that the Supreme Court last month decided the most recent gun case. You also know that the Court announced that the states lack any power to prevent you from having a gun in your home. Of course, most states already have their own constitutional provisions allowing you to keep guns in your home. All the latest Supreme Court decision added was the guarantee – for as long as the case stands – that no state can change its mind, even if its citizens voted to do just that.

The Winner!

The National Rifle Association’s entire reason for existing is gone, wiped out by the United States Supreme Court simply giving it everything it wanted.

The result was no surprise, nor the fact that it came from the Court’s five most “conservative” and activist justices, the same five who just two years ago upended more than a century of settled case law which maintained that the right to bear arms applied only to members of a militia. (The same five activists earlier this term overturned a century of law and now unions and corporations can now spend as much money as they want in political campaigns.)

The latest case is fascinating, never mind that every Supreme Court watcher on the planet predicted the outcome and the five-four vote. 214 pages of text and five separate opinions will keep law students busy for a long time.

Three of the opinions are perceptive, well-written and good examples of the art of judicial opinion writing. The Court’s primary opinion and Justice Breyer’s dissent are of less interest. But Justice Thomas wrote an opinion that should give pause to anyone who believes he doesn’t think clearly. And Justice Scalia said good-by to Justice Stevens by engaging him in their long-standing argument about constitutional interpretation. (The position of Justice Stevens will win in the end. In fact, it had won before Justice Scalia ever took a seat on the Supreme Court, but he either failed to notice or just enjoys his lonely contrariness.)

So we’ll write a post about Justice Thomas’s opinion and one about Justice Steven’s final dissent. But first, we’ll have a look at the judicial activism that gave us the rule of law that nobody can keep you from having guns in your home – if you want them. (The Court has not yet decided that you must have a gun in your home, but the five gun-toters on the Court may not be through yet.)

So next time we’ll talk about how the five members of the Court got to the result they wanted, even though they could not agree on a reason supporting their decision.

The Gods Chuckle

July 23, 2010

The adage that the gods laugh at those who plan applies to your author this summer. Planning on a summer, mainly outdoors, mainly writing; I got mainly a summer indoors practicing law.

However, things are easing up now and I plan – there’s that word again – to get back to regular blogging now.

This was the longest hiatus since the Golden State began. I’m as far behind schedule at the Rock Island’s “Golden State Limited” usually was.

Chastity Ridge

July 5, 2010

Humans of each generation live with a certain hubris, thinking that we know more than we do and unaware of our vast ignorance. Not that long ago we believed that the sun revolves around the earth; that our bodies are controlled by four “humours”; and that bad weather results from quarreling gods.

Until last week, we even thought we knew the exact location of the Continental Divide as it passes through western Colorado. Although any geologist could tell you that water west of the Divide flows toward the Pacific Ocean and water east of it flows toward either the Gulf of Mexico or the Atlantic, not one geologist in ten thousand could have told you that the Continental Divide precisely bisects room 47 of the 4UR Guest Ranch in southwest Colorado.

Those geologists would have referred you to this map of southwestern Colorado showing the Divide jutting westward for miles before returning to its general north/south orientation.

Erroneous Contintental Divide Map (The Green Line)

The map is wrong.

You see that portion of the green line jutting to the west? All wrong. Instead, the Divide runs due north/south straight through Wagon Wheel Gap. That imaginary westward jag on the map results from human hubris.

Wagon Wheel Gap

How do I know this and why do I dare fly in the face of scientific consensus? Personal experience, that’s why.

We’re just back from our annual trip to 4UR to bird, fish, eat, and sleep. This year we were assigned to Room 47 which has a brand new king-size mattress in it. The mattress runs north/south, bisecting the room.

The Continental Divide runs precisely through the middle of that mattress. A high, narrow ridge defines the Divide in the middle of that mattress. A person on the east side of that mattress rolls toward the Gulf of Mexico. A person on the west side will roll – unless stopped by the wall – all the way to the Pacific Ocean.

We named it Chastity Ridge.

Any attempt at physical contact between two people in that bed presents great danger to both. Meeting in the middle of that mattress or trying to cross it can result in a fall half-way across the continent. A cup of coffee spilling on top of Chastity Ridge adds one-half cup of moisture to the Pacific Ocean and one-half cup to the Gulf of Mexico. If it were possible for oil to run up-hill, the oil spill in the Gulf of Mexico would end at the center line of that mattress. Sexual congress is flatly impossible. Honeymooners should request a different room when booking.

And, as we’ve told you before, you ought to go sometime. When summer clouds build to the west, obscuring the sunlight and bringing moisture laden breezes to the valley floor and the trout begin to rise, no finer place on earth exists. All human toil and trouble fade away and melt into the mountains. Stress falls away, more fundamental rhythms return, and daily aggravations are far away. At 4UR, everything levels out.

The Divide also bisects the Dining Room, marked by this rifle

Except the Continental Divide. And human ignorance.

Of all humans, perhaps none are more aware of our species’ ignorance than research scientists. They live every day of their professional lives trying to push back the boundaries of what we don’t know. (That is why I’m certain geologists will be happy to know of their mistaken placement of the Continental Divide. Scientists always must adjust their views of material reality when new data surfaces.)

We met two such scientists last week, both of whom run a laboratory doing basic research into when and how a stem cell decides to become a neuron rather than a toe nail. Vigorous cross-examination of them both resulted in a deep personal awareness of just how ignorant I really am. For instance, I did not know that a single neuron cell runs from my lower back all the way to my foot. That length presents significant challenges for that neuron – and its mates – which must communicate with its far distant, distal end. Nor did I know about the intricacies of a stem cell’s DNA’s instructions to its RNA resulting in proteins telling the cell what to become and how to behave. (In fact, I’m so ignorant that I’m not even sure that last sentence makes sense and they were very patient explaining and used really small words.) They study the spatial regulation of genes within the cell. I think.

Wagon Wheel Gap

But there is nothing wrong with ignorance. In fact, awareness of our ignorance drives our progress. Calling me “ignorant” is not an insult; it’s just a truthful statement that applies to us all. Born with only five paltry senses and living such short life spans, nothing else is possible.

So it’s a good idea to converse with people who know stuff about which you know little or nothing. Not only do you relieve a wee bit of your ignorance by talking with them, you also are reminded that we all see through a glass and darkly and so must remain humble.

And, if you should find yourself in conversation with a geologist, ask about Chastity Ridge. The good geologists, the humble ones, will know about it.


Long time readers may remember last year’s entry about 4UR and the liability release guests are required to sign. It’s shorter this year – only two pages – and nowhere nearly as entertaining. I was forced to sign the thing before they would let me go fish. It was an outrage, but I signed it anyway.

An insider’s pun appears in this post. Persons finding it might receive a prize. Or not.

The erroneous maps were constructed at the marvelous government mapping site and atlas.

For more on the scientists, here is the home page of their laboratory.