More Blackstone

I hinted at deference to the legislature in my prior Blackstone post which leads to some interesting knowledge.

First off:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.

Section The Second, Of The Nature Of Laws In General

So, one needs to defer to the intent of the legislators, not only the text. Also, if a law is within the spirit of the legislation, or not covered by the legislation, then it is presumed constutional.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

In other words, one cannot read into a law what one wants, which Scalia did. One cannot take popular meanings and interpretations which have no legal basis and use them as law: especially in the face of prior judicial precedent. Unfortunately, Scalia has shown that he is ignorant of the meaning and history of the Second Amendment. I use this in the proper term as ignorance can mean that one chooses not to take notice of something as in:

ignorance XIII. — (O)F. — L. ignōrantia, f. prp. of ignōrāre not to know, misunderstand, disregard, rel. to ignārus unaware; see -ANCE.
So ignorant XIV. ignore †not to know XVII; (of a grand jury) reject (a bill); refuse to take notice of XIX. — (O)F. ignorer or L. ignōrāre.

In fact, given Scalia's prejudices in this case, I am amazed that he did not recuse himself. It is obvious that his own opinions clouded his decision and removed them from the law. In fact, "RKBA" commentators were hopeful that Scalia would write the opinion given his known bias for this theory.

I was going to use this post to say that the judge needed to think of the consequences of his decision, but it is obvious that Scalia had only one intent and that was to give official sanction to a lie. It has burdened the Constitution with unwanted and unnecessary baggage even if it should be overturned by a decision which is based in reality.

Another point I wanted to make about reliance upon Blackstone was that the text he was commenting upon was this:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

I find it amusing that the mackeral snappers on the SCOTUS should hook their decision upon this text. Even more humourous is that the author of the Heller decision is a devout papist (or so he claims).

By what means does he presume that he is covered by this text?

If he is truly an "Originalist" than he must surely know the anti-Catholic sentiment in the English speaking world at the time of the adoption of the Constutition!

The "Second Amendment Scholar" came out with some mention of the Gordon Riots which have no meaning to the Second Amendment, but do show anti-Catholic sentiment in England and the United States at this time.

John Highham described anti-Catholicism as "the most luxuriant, tenacious tradition of paranoiac agitation in American history". Anti-Catholicism which was prominent in the United Kingdom was exported to the United States. Two types of anti-Catholic rhetoric existed in colonial society. The first, derived from the heritage of the Protestant Reformation and the religious wars of the sixteenth century, consisted of the "Anti-Christ" and the "Whore of Babylon" variety and dominated Anti-Catholic thought until the late seventeenth century. The second was a more secular variety which focused on the supposed intrigue of the Catholics intent on extending medieval despotism worldwide. Historian Arthur M. Schlesinger, Sr. characterized prejudice against the Catholics as "the deepest bias in the history of the American people" and conservative Peter Viereck once commented that "Catholic baiting is the anti-Semitism of the liberals."

William Blackstone shared the general Anti-Catholic prejudices of his age and millieu. As discussed in more detail in the article on Anti-Catholicism, his Commentaries summarized his attitude toward Roman Catholics as follows:

As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

— Bl. Comm. IV, c.4 ss. iii.2, p. *54

I find it amusing that someone who is an Originalist should not only bastardise, modernise, and debase that which he claims fidelity, but I find it even more amusing that he should do so with such a text which is obviously as dated, if not more so, than the one he has baselessly altered.

Some of America's Founding Fathers had anti-clerical beliefs. For example, in 1788, John Jay urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." Thomas Jefferson wrote: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government," and, "In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own."

Although, perhaps Scalia is showing his fidelity to the founders' and Blackstone's sentiments toward Catholics and being faithful to another master in deceit to the one he has taken an oath of fidelity.

Again, using Blackstone as an "Authority" is a minefield unless your intent is to destroy the Constitution.

One nice point about US "Democracy"

The US is the only country in the world to elect its village idiot.

Or is that idiots?

William Blackstone and the Second Amendment

I had an interesting banter with someone who purports to be a "Second Amendment Scholar" who said that Blackstone 'called it the "fifth auxillary right" of Englishmen' in reaction to my question about "where is Self-defence mentioned in the Second Amendment?"

WTF?

Blackstone being Commentaries on the Laws of England. The four volumes of the Commentaries were first published between 1765 and 1769 in Oxford and first issued in an American edition in 1771.

Blackstone would be appalled to be cited as an authority in this matter and even more appalled in how he is used in the DC v. Heller opinion for the reasons I will mention in this.

I can point out a multitude of points why citing Blackstone is incorrect.

First off, it is a text book, which means it isn't even law in England. Never has been and never will. The "Second Amendment Scholar" should have read the whole wikipedia article before making a dumb statement about its being used as an authority by the Supreme Court: the United States Supreme Court quotes from Blackstone's work whenever they wish to engage in historical discussion that goes back that far (Colonial times), or further.

2) The title and dates of publication give you another two, Blackstone's Commentaries on The Laws of England (1769): unless he was psychic, he wasn't writing about the Second Amendment. He is also commenting on English Common law, not US Constitutional law.
A correlary to (2) is that Blackstone died on 14 February 1780, which means he didn't physcially take part in the debates regarding the US Constitution. So, while he is an example of an opinion on the state of the Common law in pre-Revolutionary times, he isn't a US Constitutional authority.

The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self preservation,’” ante, at 20, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.

Justice Stevens's dissent in Heller, p.30

Add in that self-defence as a topic is discussed in a different section: Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

I get into this subject later in this post.

3) Article VI puts paid to any claim of Blackstone having any bearing upon the Second Amendment. For those not in the know. this is the text of Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

That means the British Bill of Rights, Declaration of Independence, Articles of Confederation, or a Philadelphia phone book from 1776 (if one existed) aren't constitutional authorities and neither is Blackstone. Unless one is talking about a question of common law, which the Second Amendment ISN'T, Blackstone cannot be cited as an authority. Did Scalia have some third grader or his grandchild write DC v. Heller?.

Also, foreign law cannot be used as a holding, precedent, or to bind an outcome of a legal decision interpreting the Constitution. Strangely, the use of foreign law as being a no-no is something Scalia claims to believe, but not in this instance for some odd reason. Likewise, using a pre-revolutionary law textbook is a no-no as well: especially when trying to decipher the Constitution.

4) Most common law countries don't even allow lesser self-defence items (e.g. pepper spray), let alone firearms. Britain has had laws regarding weaponry for some time. Examples of past regulation of Arms in England, The Assize of Arms from 1181, The Assize of Arms from 1252, The English Archery Law of 1363, The Border Reivers were forbidden to carry weapons by James I (England, VI of Scotland), James II "caused several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law" from BOR 1689, the Act of Proscription of 1746.

As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offence.

Even sillier is the belief that armed self-defence was acceptable at the time the Constitution was written. As anyone who knows the British law of self-defence knows, even the military can be called to account for excessive force. If there were a right to self-defence at that time, the soldiers in the Boston Massacre would not have been brought to trial for murder! I mean 9 soldiers surrounded by an ugly crowd--what other course of action did they have except shoot? Also, why didn't the shipowners shoot the raiders during the Boston Tea Party?

Furthermore, The Bill of Rights of 1689 states that:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Got that as allowed by law?

So, again, don't look to Common law for guidance on the Second Amendment. Especially since you are then stuck with how other common law countries, in particular England, have used and interpreted that source: e.g., Tony Martin.

Also, arms means weapons of all sorts, not just firearms. Hence "suitable to their conditions" which means a toff can have a sabre and a pistol and a peasant a pike. So, longbows, swords, etcetera have been regulated by English law since time immemorial: usually for ensuring the common defence.

St. George Tucker wrote this regarding the English Bill of Rights in his 1803 edition of Blackstone's Commentaries:

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

It is pretty obvious that Blackstone would have been aware of the limitations to the "right to keep and bear arms" and know that it was not related to self-defence. The linking of self-defence to the Second Amendment is a very recent trend which comes from the "new scholarship".

I know that I said something about taking DC v. Heller to the Privy Counsel in a previous post, but only a well educated US court is capable of rendering a judgement on the Second Amendment. I would imagine the Privy Counsel saying something such as that the Second Amendment is a US Constitutional question, which it is. Justice Stevens also correctly points out in his Heller dissent that any look at British law is totally different from US law (which doesn't stop me from wanting to take DC v. Heller to the privy counsel). But I don't really want to digress into that as I have more than enough posts about how the Second Amendment fits into the structure of the US Constitution.

Also, to say that arms are necessary for self defence neglects Blackstone's writings concerning the law of self-defence which are:

THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

In short, as I have also said in previous posts, one can only use enough force to resist the attack and not become the aggressor. In fact, one should back down if possible rather than escalate to violence if one follows the common law of the time.

Statutes have recently changed the law of self-defence to allow for deadly force, but that is a statutory change and not a change in the common law. I have posted more than enough about the Common law doctrine of self-defence in other posts.

Going beyond self-defence, citing Blackstone as an authority would also require that you give deference to the proeme of the Second Amendment according to his rules of statutory interpretation.

If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.

The law which relates to the same point as the Second Amendment is the US Constitution itself and in particular Article I, Section 8: To provide for organizing, arming, and disciplining, the militia.

That would mean that you would have to go with it being a civic right (that is only for the militia) since deference must be given to the proeme (A well regulated militia, being necessary to the security of a free state). You would also have to look at other provisions in the Constitution that addressed the militia, which there are. Scalia decided to pick and choose his authority and sources ignoring this portion of the common law doctrine, misinterpreting the law of self-defence--which isn't even mentioned in the Second Amendment, and ignoring the militia clauses in the main text of the Constitution.

In fact, Scalia violates another dictate found in Blackstone: stare decisis.

A judge is “bound by oath to decide according to the law of the land,” William Blackstone, Commentaries on the Laws of England. Blackstone notes that “it is an established rule to abide by former precedents,” that the scales of justice be kept steady and “not liable to waver with every new judge’s opinion.” It is a good thing, to achieve that end, the judge is “sworn to determine not according to his own private judgment, but according to the known laws and customs of the land.” (Blackstone at 117)

Stare Decisis is not absolute. Blackstone wrote, “[T]his rule admits of exception, where the former determination is most evidently contrary to reason” (Blackstone at 118). In such instances, it is incumbent on the inferior judge to decide pursuant to his Oath, and not to the faulty and irrational opinions of men. The DC. v. Heller chain of decisions is contrary to when an exception can be made to stare decisis as it was the opinion of the people and the faulty reliance upon Blackstone (and other irrelevant authorities).

In fact, the Heller decision is flawed from a stare decisis viewpoint in that there is no valid reason to overturn US v. Miller, 307 U.S. 174 (1939) other than public misinterpretation of the Second Amendment and a need to state the holding in idiot proofed modern English, which Justice Stevens did. The new scholarship is all over the place since it once talked about the militia, now we are seeing it being talked about in the context of self-defence for which there is no basis in the US Constitution.

I mean do a search for the term self-defense in one of the online versions of the constitution It ain't there!. Common defense is and self incrimination is, but not self-defence.

There especially is not any authority to say the Second Amendment covers the right of self-defence using Blackstone.

The question asked by Patrick Henry was "When this power is given up to Congress without limitation or bounds, how will your militia be armed?" when the Second Amendment was being debated.

He wasn't talking about self-defence! In fact, none of the quotes in the ratification debates deal with anything other than the question of Federal power under article I, Section 8:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For more quotes go here. The relationship between a Federal Army and state militias was what was being discussed at the time, not self-defence.

Which gets back to my point that The Book is called Blackstone's Commentaries on the Laws of England and was published roughly 20 years before the Constution and before the war for American Independence. Blackstone was dead when the Constution was debated and had no idea of Article I, section whatever or the Second Amendment. That means you can't place the Second Amendment in the context of his commentaries: it is a US Constitutional law issue.

NOT A COMMON LAW ONE.

Blackstone would have given deference to the prior court decisions under the doctrine of stare decisis and weight to the proeme (A well regulated militia, being necessary to the security of a free state).

Blackstone would be appalled to see his work trashed by Scalia in the DC v. Heller decision since this decision doesn't follow Blackstone in any sense.

Ya can't pick and choose what part is useful if you want to say he is an authority; well, with the exception where he is clearly irrelevant, which he is in regard to the Second Amendment jurisprudence.

I am not sure how Blackstone would have deferred to the legislature, which the Heller courts failed to do as well.

Justice Stevens's opinion is a much better opinion from a legal standpoint: especially if one wished to use Blackstone as a source. Justice Stevens follows stare decisis, gives weight to the proeme, and did not give weight to "the faulty and irrational opinions of men".

As Justice Stevens said.

The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.

More Heller Wanking

For some reason, I keep rereading J. Stevens's dissent and wishing that it had been the unanimous opinion of the court. I keep wanting to write J. Stevens and ask him if he knew my Uncle from the ABA and would go out for a beer with me at the Brickskeller.

But that isn't really my point here. My point is that the decision was crap for various reasons and doesn't satisfy either side. The starting point being the Simple Justice blog piece I mentioned in an earlier post. Here is another post. And this one from Lew Rockwell is a real doozy!

Here is another post which reiterates the Simple Justice comment. I have seen other blogs where the posters have realised that Scalia hasn't said all firearms regulations are suspect.


The best post is this one from Slate. The writer points out that if someone replaces Justices Thomas, Scalia, Roberts, Alito, or Kennedy (Thomas specifically), they could decide that Stevens's dissent made better legal sense.

Stevens ends his dissent with the following two paragraphs:

I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo (in Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974)), but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.
The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’sopinion, I could not possibly conclude that the Framers made such a choice.

Another thing I said in an earlier post was that if the court didn't want to burden the Second Amendment with baggage, and by further implication the Constitution: the should have used stare decisis and produced J. Stevens dissent as the unanimous opinion of the court. But no, they had to come up with some political puffery.

Stevens points out that the position he advocates does not affect civilian firearms ownership, other than to take it from being a right.

On the other hand, while stating there is some sort of right, Scalia's position doesn't define this right. A conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. In fact, it is the best gift for the "gun grabbers" as there is no way that a law can ban the lawful ownership of firearms by law abiding citizens from what little Scalia says. When people realise that was the meaning of all of Scalia's blather, then the Heller decision is decidedly firing blanks.

Or as one commentator I mention above says "Second Amendment Sharpshooter Scalia Shoots Self In Foot".

Today was my birthday

I spent the entire day with Michael, which meant about 3 hours in the sherpa tote as I went to work, court (CH478), the dentist, and Trader Joes. Too bad they don't knock Michael out at the dentist the way they do me. My big treat for today was to chase two squirrels in the park.

Too bad Michael will be off tomorrow for Jury Duty without me.

More War for American Independence

Believe it or not, I have a lot in common with the average colonial at the time of the War for American Independence. They considered themselved British and that was a major part of their grievance at their being taxed without their consent.

I saw something in the Philadelphia Weekly that struck a chord with me about the "tea Parties" which are occurring over in the States. As Joel Mathis says: "It’s getting so you can’t tell regular Republican insanity from the lunatic fringe anymore."

I liked the part where antitax activist Larken Rose took the microphone and praised America’s Founding Fathers as “cop killers”—and wondered aloud why today’s citizens are too wimpy to follow in their footsteps.
 (A rough transcript of Rose's speech is available at his website).

“Those people were criminals, they were tax cheats, they were traitors,” Rose told the audience, which had dwindled to a few hundred people in the late afternoon. “Truth be told, some of the colonists were cop killers.”


Where, asked Rose, were the Americans who were willing to break the laws passed by crooked politicians and fight back against “crushing” governmental taxation?


“I’m not talking about voting and whining to your congressman,” he told the audience. “I’m talking about resistance.”


Needless to say, the organisers wanted to distance themselves from this type of talk.
“The speakers we had at our tea party gave the message we wanted to portray—period,” says Chris Clemency of the Independence Hall Association.


Pennsburg resident Rob Pepe helped organize the second tea party under the “ReTeaParty” banner. He says he wasn’t the person who invited Rose—but suggests Rose’s speech was to be taken metaphorically.
 “This is an educational revolution,” Pepe says. “It’s time to understand what liberty is all about.”


Rose—an author who served prison time for tax evasion—denies the legitimacy of the federal government and writes angry tirades against “Gestapo” police tactics on his website. It sure didn’t sound like he was speaking in metaphors. He mocked “Freedom Movement” members who vote and obey the law, and smilingly acknowledged a shout of “9/11 Truth!” from the crowd.


“If 2 to 3 percent taxation justified a revolution in 1776, why doesn’t 50 percent and growing justify a revolution?” Rose asked. “If a few little excise taxes on pieces of paper and tea justified open lawlessness from these rebels that were all celebrating, why don’t the myriad of incomprehensible, unavoidable, crushing taxes—state, local and federal—why don’t they justify a revolution today?”


By the way, Rose didn’t respond to an interview request from PW . But it’s worth noting that despite his fiery talk, he doesn’t always walk the walk. He urged his audience to refuse to recognize the authority of the government­—but when convicted of tax evasion in 2005 he didn’t exactly go down in a hail of bullets: Instead, he was sentenced to 15 months in federal prison and lived to write and speechify another day.


Now, this is a good point. Most of the "patriots" were pretty conservative. And, Like Rose, were quite willing to raise taxes on themselved beyond the low taxes which caused the rebellion. As I say, they didn't like taxation without representation, but would go on to tax the crap out of themselves.

The Tories were correct, things were pretty good and far from "tyranny", unless you take into account the standing armies. The problem is that rebellion for the hell of it would lead to people like Larkin Rose.

236 years of a mistake, it's time to go back!

These religious pains....or I'd love to ask for those directions.

It was normal practice for a medieval street name to reflect the street's function or the economic activity taking place within it.

With that as an introduction, Gropecunt Lane was a street name found in English towns and cities during the Middle Ages, believed to be a reference to the prostitution centred on those areas. Gropecunt, the earliest known use of which is in about 1230, appears to have been derived as a compound of the words grope and cunt. Variations include Gropecunte, Gropecountelane, Gropecontelane, Groppecountelane, and Gropekuntelane. There were once many such street names in England, but all have now been bowdlerised. In the city of York, for instance, Grapcunt Lane—grāp is the Old English word for grope—was renamed as the more acceptable Grape Lane. Streets with that name were often in the busiest parts of medieval towns and cities, and at least one appears to have been an important thoroughfare.

Under its entry for the word cunt, the Oxford English Dictionary reports that a street was listed as Gropecuntlane in about 1230, the first appearance of that name. Organised prostitution was well established in London by the middle of the 12th century, initially mainly confined to Southwark in the southeast, but later spreading to other areas such as Smithfield, Shoreditch, Clerkenwell, and Westminster. The practice was often tolerated by the authorities, and there are many historical examples of it being dealt with by regulation rather than by censure: in 1393 the authorities in London allowed prostitutes to work only in Cocks Lane, and in 1285 French prostitutes in Montpellier were confined to a single street.

Although the name was once common throughout England, changes in attitude resulted in its being replaced by more innocuous versions such as Grape Lane. Gropecunt was last recorded as a street name in 1561. With the exception of Shrewsbury and possibly Newcastle, where a Grapecuntlane was mentioned in 1588, the use of Gropecunt as a street name seems to have fallen out of favour by the 14th century. The ruling Protestant conservative elite's growing hostility to prostitution during the 16th century resulted in the closure of the Southwark stews in 1546, replacing earlier attempts at regulation. A street called Grope Countelane existed in Shrewsbury as recently as 1561, connecting the town's two principal marketplaces. At some date unrecorded the street was renamed Grope Lane, a name which it has since retained. In Thomas Phillips' History and Antiquities of Shrewsbury (1799) the author is explicit in his understanding of the origin of the name as "... [a place of] scandalous lewdness and venery", but Archdeacon Hugh Owen's Some account of the ancient and present state of Shrewsbury (1808) describes it as "called Grope, or the Dark Lane". As a result of these differing accounts, some local tour guides attribute the name to "feeling one's way along a dark and narrow thoroughfare".

Some medieval street names such as Addle Street (stinking urine, or other liquid filth; mire) and Fetter Lane (once Fewterer, meaning "idle and disorderly person") have survived, others have been changed in deference to contemporary attitudes. Sherborne Lane in London was in 1272–73 known as Shitteborwelane, later Shite-burn lane and Shite-buruelane (possibly due to nearby cess pits). Pissing Alley, one of several identically named streets whose names survived the Great Fire of London, was called Little Friday Street in 1848, before being absorbed into Cannon Street (would it be Pissing Alley Station?) in 1853–54. Petticoat Lane, the meaning of which is sometimes misinterpreted as related to prostitution, was in 1830 renamed as Middlesex Street, following complaints about the street being named after an item of underwear.

Now, just imagine if some developer decided to use some of these quaint, Olde Englishe street names in his housing estate.

Well, turn down Cock Street and make a left on Pissing Alley You'll see Gropecunt Lane after you've passed Shiteburn Lane.

Or maybe Cock Street runs into Gropecunt Lane.

A couple of days late, but...

The Philadelphia police arrested the first of the shooters in the Rian Thal case and have arrest warrants for the other two. Read about it here.

Right when I was going to do a piece about how the real first freedom is the ability to write and spread your ideas. There was a great piece about how Czech and Polish dissidents wrote and spread their thoughts on the BBC news tonight.

BTW, if you could check the IP address this was posted from (213.146.164.142), you would find that it was posted from the UK.

The latest in the Rian thal case.

Just being a curious poopster, I decided to check out Katoya Jones's record and cases (MC-51-CR-0030337-2009 and MC-51-CR-0030338-2009). I know the UJS portal isn't considered an official record, but what the heck. Ms. Jones may have had a prior contact with the system in a traffic court appeal, CP-51-SA-9907678-2006, but that's not really criminal as most of us have disputed a traffic charge.

Funny, but for someone who lived in a ritzy apartment complex Ms. Jones appears to have a court appointed attorney, Michael Medway. Please excuse me if I am reading the docket sheet incorrectly, but that's how I read entry #2, 07/09/2009--Appointment Notice. That and the notation "Court Appointed" next to the attorney info. Medway's being appointed on the first listing of the preliminary hearing led to a continuance based upon the attorney being recently retained/appointed. Also, the preliminary hearing is listed in room 306, which is a super duper murder trial room.

I mean if I were really curious, I could go to the courthouse and watch the drama live and in person. On the other hand, if you want that sort of commentary, you had better be willing to pay me.

So, I will just check out the UJS portal and make my own conclusions, but I am pretty sure there is more video out there from this article. The cops usually know more than they tell the media.

So, I am sort of correct about the first arrest, even though Ms. Jones isn't a big fish, but she is big enough to be in Riverside Correctional Facility for the time being. I am surprised the docket sheets don't show her bail.

So, that it straight from the pooch.

Wait a minute!

From: Texas, other states file 2nd Amendment amicus brief

The amicus brief reads in part: “The right to keep and bear arms under the Second Amendment is not just a ‘fundamental’ liberty interest. In the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties. The Founders well understood that, without the protections afforded by the Second Amendment, all of the other rights and privileges ordinarily enjoyed by Americans would be vulnerable to governmental acts of oppression.”

Government oppression in a democracy? Are these people listening to themselves?

As I just pointed out in my previous post, in a democracy, the people are the government!

Anyway, Tyranny to the founding fathers would have meant a large standing army used to waste money by some pointless excursion, say invading Iraq.

So much for the Second Amendment protecting me from Tyranny.

Tyrants don't fear an armed populace, they just bomb the fuck out of them.

General rant

Let's see: I could write a book of how we all ended up in the current mess we are in and have been thinking about various topics.

1) failure of leadership: it seems that people are finger pointing at everyone for not taking responsibility. CEOs for not saying that it was ridiculous to fire everyone in a market economy, having a system based upon debt, using mumbo jumbo accounting practises to show a profit, and so on and so forth. Well, I have been saying how dumb these practises are and have the proof of it.

But no one listens to me.

2) The fact that I am a slacker and shirk responsibility. Sorry, but there is no reward in it for me. I've tried and know that I am a leader. On the other hand, there is only so long you can bang your head against a wall before you say "ouch".

3) "Leaders" refuse to tell the truth. For example, remember the Village Idiot on the Air Craft carrier deck saying something about "mission accomplished?" Likewise, I have been banging on about the correct interpretation of the Second Amendment, which is that it is to protect the institution of the Militia organised Under Article I, Section 8 and any other interpretation is gibberish. The masses tell me I am wrong and hurl a misquotation at me.

OK, let's see how the Heller decision works out. People are seeing that there is nothing there but meaningless words.

Why, because the Second Amendment is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Whatever punctuation you may choose.

It's not

the right of the people to keep and bear Arms

or

the right of the people to keep and bear Arms shall not be infringed.

or

A well regulated Militia, being necessary to the security of a free State

The Second Amendment must be read as a whole and in context of the Constitutional framework, which Includes Article I, Section 8 (and some other bits as well). Both the Militia clause and the Right to Keep and Bear arms clause work together and you can't separate them without turning the thing into total rubbish.

Tough shit if you think the contrary

4) On the positive side, people are not driving as much as they did or consuming as much fossil fuels as they have been because of the economy. Pluses and minuses here in my opinion. The major plus is that I think it is part of the reason that the weather is acting a bit more "normal". Not that I am a scientist or have proof behind this belief.

On the other hand, it's about time this happened. Too bad the infrastructure for public transportation has been neglected, trashed, or otherwise stagnated. It would be nice if Washington, DC's metro system were the worst of the pile instead of the best. INEPTA, or SEPTA, could use a lot of work and far more frequent service. NYC has a super system, but it's downright frightening compared to London.

I show my London bias when it comes to public transportation. London has the Best public transportation system I have seen for its age. NYC and London are roughly the same age, but London has tried to keep its system up to date. And terrorists to the contrary, it runs pretty well.

Of course, I love Belgian trams.

I wish Philly had all its trams still. The place would remind me of Melbourne (as Baltimore reminds me of Sydney).

5) Health care: why is it taking the Yanks so long to get it together?

6) Public v. Private debate in the US. Isn't this a non-issue, or are Yanks really stupid people?

In a "democracy" the government IS the people. I find it interesting how the anti-gevernment types get suspicious about the "government" when THEY ARE the government.

I guess they don't trust themselves.

Anyway, public means that the public has oversight over the process.

On the other hand, would you trust private enterprise with your retirement? Which is a question I have been asking for ages, but seems much more relevant now that everyone's retirements are tanking.

Private industry means that business as usual goes on and fuck the little guy.

Feeling a bit fucked lately?

7) On the other hand, I am feeling very anti-democratic and am probably in good company with the founding fathers. Quite a few of them owned slaves and decried "mobocracy".

Didn't anyone point out to Patrick Henry, Thomas Jefferson and James Madison that it made no sense to say things such as "give me liberty or give me death" or "all men are created equal" yet own slaves? We the people, that is we the rich, white men who run things, not you effing peasants.

Furthermore, The unfortunate thing is that myth has won out over reality and they image of the Colonial miltiaman prevails (sorry Ladies, BUT). Instead of the War for American Independence being seen as a world war with France contributing a significant amount to the war effort. For example, the Siege of Yorktown, did you realise that there were 10,800 French troops and 29 French War ships compared to a total of 11,000 Colonial troops (8,000 regulars and 3,100 Militia). The militia had a terrible reputation in both the War for Independence and 1812 Wars.

I think the amount of Loyalists in the population was never properly assessed. Historians have estimated that between 15 and 20 percent of the white population were Loyalists. Historian Robert Middlekauff estimates that about 500,000 colonists, or 19 percent of the white population, remained loyal to Britain. I think this number comes from the about 20% of the Loyalists left the U.S. to resettle in other parts of the British Empire.

But how many people were loyalists who kept their mouths shut just to stay in their homes?

Remember that most Colonials thought of themselves as British. Which is a good seque to...

8) Rights: What a nebulous term. What is a god given right anyway? If owning a firearm is a god given right, wouldn't they have been around well before 1100 AD?

9) I think the real issue though is that most people don't want to take responsibility for their action or contribute to society. For example taxes.

I wouldn't mind taxes if I had a way to pay them (same for bills for that matter). Taxes are the cost of living in society.

If we take the private enterprise model, a shareholder needs to contribute his share to the effort. Likewise, in a public/civic model, a citizen needs to contribute.

10) Which gets to the final point, there was a counter-argument to Thomas "Revolution for the Hell of it" Paine's Common Sense called Plain Truth. Unfortunately, it didn't have the flowery language of Paine's drivel, or the popular appeal.

Volumes were insufficient to describe the horror, misery and desolation, awaiting the people at large in the form of American independence. In short, I affirm that it would be most excellent policy in those who wish for TRUE LIBERTY to submit by an advantageous reconciliation to the authority of Great Britain; “to accomplish in the long run, what they cannot do by hypocrisy, fraud and force in the short one.”

INDEPENDENCE AND SLAVERY ARE SYNONYMOUS TERMS.

An arrest.

OK, yesterday I said there would be an arrest in the Rian Thal case by the 7th. Well it turns out, the first arrest happened today. It was Thal's neighbour, Katoya Jones. Jones wasn't a major player in the murders, but she is a link.

So, I still say that the big arrest will happen in the next week.

Here is some of the surveillance video:


I've heard there is some better video out there, including the acutal shooting. Not sure if that is the old rumour mill though. But that would be the final wrap on their nooses.

Still, these clowns should have just left their tags for all it mattered.

For those of you who are no in the know, CCTV is the upcoming crime fighting tool. I've already had one client have to admit after video footage showed him doing what he was "alleged" to have done. Britain is notorious for its use of CCTV. Sure, at this point, crime hasn't fallen significantly, but that is a matter of time.

The criminal "mind" takes a while to realise that it is being outfoxed. Also, it is dependant on its belief that there is a "get out of jail free" card.

So, these crims can do their shooting and not realise they are on candid camera, which will be only one factor in their conviction. You can be sure Katoya Jones will be cooperative once she becomes aware of the implications of her actions. Add in the prints of the one perp who is sitting on that chest. There are also several witnesses to this from just watching the surveillance tape.

BTW, there is another rumour floating around that the one "associate" who made off the the duffle bag was carrying 10 kilos of coke and even more money. As is wont, there was enough money and drugs left to show that the people who were killed were drug dealers.

I feel sorry for Rian Thal, but crime just doesn't pay. There is really no quick way to make money: but my posts on avarice are another thing.

R.I.P. Steven Wells: aka Seething Wells, Susan Williams, Swells

I have to admit to a regret at not meeting Steven Wells. As I said in a comment on the Philly Weekly site

Funny that Steven and I never met in person given we are both Brits who have made Philadelphia our homes for the past 10 plus years. Probably because I have been working in the legal field and Steven in journalism. I did write him to say I agreed with his opinion on Christ and Christmas, after all we did come from a country which banned Christmas for being too pagan.

I googled Steven to find this page and saw he was also a writer for the Guardian and FourFourTwo as well as the Philly Weekly and NME.

Come on folks, give this bloke credit! the Guardian also ran a super obit on Steven

http://www.guardian.co.uk/music/2009/jun/29/obituary-steven-wells

That's worth noting as well.

I am not sure whether we would have loved each other or wanted to kill each other if we had ever actually met. We were both early punks, but I have moved away from that to World Music, although you could say I have always been into world music.

I can imagine him telling me that the Bollywood stuff I am listening to as I write this is shite. So, I just switched to L'Arpeggiata's Monteverdi. Anyway, we shared a love of music and I am sure we wouldn't have lacked for conversation. Probably the difference in opinion would have been one of our links if we were friends.

We had the Great Western Railway as another link, Swindon being one of the more boring places in Britain (although it did give us XTC). I was from further West: Warwickshire and went to University in Exeter, but Paddington was my link to home in the counties or in London. Swindon was the home to the GWR.

I have heard two sides of the Eton Story, one that said they thought he was an Etonian (scroll down) and another that said he hated them. Whatever. I know loads of old Public School boys in shit jobs. And as my Grandfather pointed out, the lowest are just as important as the folks on the top. So, I would hope we would be a class free zone, despite my putting my title in my comment on Philly Weekly.

Hey, we could have both sold out if we had wanted. So, I guess I should be glad to be in my position. I bet Steven is agreeing with W. C. Fields right now: "On the whole, I'd rather be in Philadelphia."

Well, it beats the alternative!

I mean what is someone who wrote for the Guardian and another who was a barrister in training who was told it was a shame I had to leave Britain to find work by Paddy Ashdown when I graduated from University given my credentials.

Not that Philly is a total wasteland.

Part of me says we would have gotten on like a house on fire, which gives me comfort in not having had met him. I would be another of the people who miss you and see the world as an emptier place on your passing. Maybe Philly is a wasteland now that you aren't here.

So, I'll raise a pint in your honour, mate, and miss you. I will add to those grieving your loss and write my ha'penny's worth to the cyber mourner's book.

Well planned murder?

OK, my boss says that I am totally out of the loop on local Philadelphia news (but can tell you what is happening in London).

It seems that I missed the crime of the century here, which is the shooting of Rian Thal.



Anyway, he used my expertise to find her myspace page and dig up some info on her.

Anyway, I keep hearing how the "hit" was "well planned".

Excuse me, but they caught all 4 perpetrators on camera and one left his finger prints at the scene. Not to mention there was 4 kilos of cocaine and 100 grand in cash left at her apartment.

I am the first to say that criminals are not the brightest stars in the firmament, but this crew wins a Darwin award. I am curious as to how long it will take to find and prosecute them.

Well planned would have been to have scoped out the CCTV cameras and worn something like latex gloves. Not these geniuses.

Fortunately, their little ambush would net them the death penalty, but I know how the criminal justice system works and predict that they get something less than that. How does life in prison sound? As someone who has taken the course on death penalty, I know that is a more probable outcome.

So, Life in prison, 20-40 years, or the death penalty as a possible outcome for the four stooges.

Of course, another outcome is that one turns "rat" for a sweetheart deal and the others get the death penalty.

So, I am waiting for an arrest by the end of next week (7 July). Max time for arrest being the end of July or early August.

Anyway, yet another young woman is buried before her time. Sad.

The only people who can make crime pay are law enforcement, lawyers, security personnel, and alarm system companies.

Taken from Simple Justice

http://blog.simplejustice.us/2008/06/24/the-problem-with-scotus.aspx

and

http://blog.simplejustice.us/2008/06/26/the-heller-decision-a-massive-disappointment-for-all.aspx

The Supreme Court of the United States is the final arbitrator of constitutionality. It's purpose is to provide the courts of our nation, and hence the people of our nation, with clear guidance as to what the law is. The Supreme Court has failed to do so.

It's like a tease, taking cases and leading us on to believe that we will finally get some answers to questions that plague the courts. And then, a bunch of words that may (or may not) resolve one question, but leaves us with a bunch of new questions to flesh out the rule. In other words, we are no better off after the case is decided then we were before.

Of particular concern is the game being played where the court expressly refuses to determine some critical aspect of an issue, whether under the guise that it is not before them, or the record is inadequate, or "it need not be decided" for lack of a better excuse. These are extraordinarily smart people, and they have incredibly smart people supporting them. They know that their decision fails to serve any real purpose unless it covers the issue in its entirety, addresses the new questions that arise from their answer to the old question. They know what it means to provide meaningful guidance. And still, they refuse to do it.

Rothgery was a disaster of a decision. Not because of how it came out, but because it was so lacking in clarity, and so limited in scope, that it accomplishes nothing. Who needs a Supreme Court that accomplishes nothing?

The bottom line, with all due respect to the lawprofs, is that courts exist to resolve issues for real people. To do so requires clarity of thought and expression, together with a level of completeness to their decision that serves to tell regular people, not to mention us trench lawyers, how to conduct ourselves. We need issues resolved. They are not giving us answers. The Supreme Court is failing us.

In many instances, the issues taken up by the Supremes are so limited, perhaps even trivial, that we don't feel much heat as a result of their partial decision-making, or their indecipherable holdings. While certainly a warning of problems ahead, such decisions aren't important enough to society to raise voices in concern. But this week may well prove to be very, very different. This may be the week that the Supreme Court decides one of the most significant issues to impact society in decades. This may be the week of Heller.

District of Columbia v. Heller could cause a seismic shift in society. It could hold that the Second Amendment right to keep and bear arms is a fundamental constitutional right. It could hold that laws restricting this right must pass the strict scrutiny test. And it could wreak havoc upon our society if it is consistent with the half-baked decisions that the Court has issued of late.

Should the Court open the door in Heller, but fail to address the many obvious questions that arise from such a decision, it could open the door to a decade (if not more) of confusion, litigation, inconsistency and irrationality, as people, legislators and courts try to sift their way through the application of a broad rule without any real parameters.

This will cause chaos. It will throw the legal world into disarray. It will cause harm, expense and anger. It will put people into prison who may have committed no crime, but won't know because the Court neglected to provide answers to the obvious questions. It is unacceptable.

Perhaps the justices (and those who provide support) are too intelligent, paralyzed by their brilliance from providing fully fleshed-out answers to the questions before them. Perhaps they are disconnected from the need for guidance in the trenches, satisfied with their product and oblivious to the fact that those of us in the trenches who rely on their every word can't make use of decisions that beg more questions than they answer. Maybe internal politics precludes them from providing fully formed answers to pressing questions, leaving us with nothing more than a decision unworthy of the tree that was killed.

But one thing has become clear to me. The Supreme Court has failed to deliver this term. If they cannot issue a decision that provides meaningful guidance on how courts should decide cases, people should behave and other branches of government should conduct their affairs, then there is no reason for the Supreme Court to exist.

I pray they do a better job in Heller. I fear they won't.

I have to disagree with this in part since I think that Justice Stevens did a super job of following precedent and clarifying United States v. Miller, 307 U.S. 174 (1939), which is what I believe the court should have done as a unanimous opinion rather than produce the politically motivated pap which passed for a majority opinion that was produced in this decision.

Not to mention that any amendment of the Constitution's language should come through proper channels. That is the legislature, not the judiciary.

Simple Justice also says this about Heller:

To cut to the chase, the sum total of Heller is that states cannot have a blanket prohibition on the possession of a handgun within the home for purposes of self-defense by individuals who are not otherwise prohibited, such as felons and the insane. That's all she wrote.

Another point Simple Justice points out is:

During the arguments preceding Heller, I asked everyone, particularly the lawprofs, to provide any explanation of how one concludes that the Second Amendment provides a fundamental individual right, and still avoids all the implications of such a right. We now have an answer, straight from the pen of Justice Antonin Scalia:

There is absolutely no rationale to support such a conclusion, so Scalia simply announced that all the limitations that he wants to apply continue to do so and provides no explanation or rationale at all. It's a total punt.

I am less of a Supreme Court Junkie than Simple Justice since I tend to practise law and do these rants as a sideline to exorcise my demons, which is why I don't sign my name. Trust me, you could figure out who I am from what I write here if you were as intelligent as you think you are: there is a mass publication article about us which is easily googled if indeed you were as intelligent as you think you are (it came up first go for me).

The thing is that it would have been very easy to have stuck with precedent and give an opinion like that of Justice Stevens. In fact, I made a comment about how CJ Roberts said he didn't want to burden the second Amendment with baggage, which could only be achieved by following precedent.

Also, I believe that Simple Justice points out as I do, the finding of an "individual Right" outside of the militia context requires something much more substantial than the Heller decision provided. First off, what is the standard of review for this right? Scalia, as I have also pointed out, states that restrictions are allowable. In fact, I know he allows for reasonable restrictions.

Now what the fuck does "reasonable restriction" mean when the wording is "the right of the People to keep and bear arms shall not be infringed"? Sorry, but that type of language means that laws restricting this right must pass the strict scrutiny test.

What most people don't realise is that the Civic/Collective right interpretation doesn't mean gun control is a requirement: only that the Second Amendment applies to the militia organised under Article I, Section 8: not personal firearms ownership.

That means you could have a complete gun ban, or make everybody buy a gun. Well, the latter might be hard as people could say their religion prevents them from owning a deadly weapon. But still, there would be no ruling on firearms being a personal protected right or not.

On the other hand, The Justice Stevens removes the concept of "gun right" from the political arena in his opinion, which would have been a very good thing. I mean Heller could provide a field day for lawyers bent on causing mischief.

Which in some ways, Heller removes the concept of gun rights or the spectre of a gun ban from the political arena as well.

So, do you prefer pandering or precedent?

I'll stick with precedent.

Does the Second Amendment apply to the States?

The problem with the Second Amendment is that it was intended to prevent Federal interference with State run militias organised under Article I, Section 8. I've gone on at length that most of the half quotations used by those posing as Second Amendment scholars deal with the conflict between the Federal Army and the State Militias set up under Article I, Section 8--not some weird individual right. That was pointed out in United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Scalia breezed over this very salient point to Second Amendment jurisprudence as do most alleged "Second Amendment Scholars". Amusingly enough, Scalia has already said it doesn't: “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” A Matter of Interpretation: Federal Courts and the Law (1997). Let's see if he can stick with his own precedent!

Anyway, The Second Amendment is a limitation on the Federal Power granted Under Article I, Section 8. As I pointed out in my critique of Dellinger's advocacy he neglected that Miller had already set for the standard of review and that the Second Amendment was written to address the Federal Power granted Under Article I, Section 8, which he should have hammered on about like a broken record.

Now, Any first year law student who has participated in moot court knows that one shouldn't let the Judges take over your argument. Dellinger should have hammered that it was settled law by a Unanimous opinion and that the Second Amendment guarantee should not be extended.

Now with Chicago fighting any Second Amendment challenge to its gun ban based upon the Second Amendment being a limitation on the power of Congress/Federal Government and not local jurisdiction. I hope that Chicago has better appellate advocates than does Washington, DC.

On the other hand, I hope that other lawyers see the advantage to open up the scope of rights granted by the Bill of Rights since Heller was willing to give a broad reading to the rights granted under that document. The Heller decision was bad law as it set a precedent which will allow for much mischief by clever lawyers.

Why should we be bound by the words of the Constitution, especially where clever lawyers can argue an extension of our rights?

As I said, isn't health care a fundamental right? How can one argue with health care?

I want my right to health care that is guaranteed under the Ninth Amendment!

Brilliant!

The oiks who think that Heller was properly decided didn't think out the implication of suddenly extending a right where it had not existed. In fact, firearms have been used as a wedge issue to avoid the problems we are now facing. But now we can use Heller's expanded reading of the Second Amendment to our advantage.

You see, if there is a right to life for the unborn and a right to a deadly weapon for self-defence there must surely be a right to health care, a home, and I would even add in a job. After all the economy is based upon debt (see one of my other posts), it is ridiculous to not have the ability to pay those debts.

We have had these clever lawyers out there making a change in how the law was interpreted by coming up with something not grounded in reality: which the current interpretation of the Second Amendment is. The Second Amendment has been used as a wedge issue to great effect.

Well, let's use our expanded Ninth Amendment rights to our advantage for issues that are important to people: health care, housing, and jobs. I mean if the Second Amendment can be expanded to allow for a right to deadly force, why can't the Ninth be used for the benefit of the people.

So, let's just expand our rights. Let's add baggage to the Constitution!

Maybe DC v Heller isn't so bad....

I am curious is there anyway that the DC v. Heller decision could be extended to Universal Health care?

I mean if it's my right to own a firearm for self-defence even though that term is never mentioned in any version of the text of the Second Amendment, isn't there a way that my right to health care can be protected by the Constitution? In fact, the common law doctrine of self-defence said that one should use only enough force reasonable to stop the attack and that excessive force could turn a defender into an aggressor to paraphrase Blackstone. That puts paid to self-defence and gun ownership since deadly force is last recourse, not the first.

On the other hand, I believe that the health and well being of a nation's citizens are of utmost importance. Health care must be a right if owning a firearm is a right.

Don't forget that the Ninth Amendment says that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people "

Now, doesn't that mean that I have the right to health care? Isn't my good health a fundamental right and of interest to society? I believe I have the right to health care. I'm sure the founding fathers would agree with me as well since they said something about "life, liberty, and the pursuit of happiness" in the Declaration of Independence. Not to mention we have the technology to ensure good health care for all.

That is the ultimate fundamental right. In fact, I don't want to live in a country where the right to use deadly force is more important than people's health.

In fact, couldn't we also extend my rights to say that I have a right to a home, no matter how humble that home may be.

Why should deadly force be a right but not health care and the right to a home?

Why would the founding fathers believe in a right to a firearm, which cost a significant portion of personal income, yet deny us healthcare or a home?

It is my Ninth Amendment right to health care and a house.

How do we remedy this wrong?

Or, you are charged with possession of an illegal weapon and

the weapon in question is a Great Highland Bagpipe.













The prosecution is based upon a statute dealing with firearms. In fact, the precise language is that "the weapon must fire a projectile using either a chemical, explosive, or pneumatic pressure force"

The prosecution relies upon the 1746 prosecution of James Reid, a Piper who was executed at York as a rebel. In his trial it was alleged in his defence that he had not carried arms, but the court observed that a Highland regiment never marched without a piper and therefore that his bagpipe in the eyes of the law was an instrument of war.

"The bagpipe is the only musical instrument deemed a weapon of war because it inspired its troops to battle and instilled terror into the enemy. The skirl of the pipes stirs men's and women's souls and its power and influence in battle as in life, is measurable".

The prosecution brings forth loads of documentation to prove that the bagpipe is an instrument of war and should be considered a weapon. Oh dear, even the EU bureaucrats want to go after bagpipes as well!

Should the law be extended based solely upon this new scholarship?

You're in court and the Judge is a large marsupial

Why because you have been charged with a crime.

Let's make this fun, you were charged with possession of a controlled substance: Motor Oil.

The law you were charged with states:

a person is guilty of Criminal Possession of a Controlled Substance in the Third Degree when that person knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half [1/2] ounce or more.

I'll add in the narcotic drugs for purpose of this act (and example) are opium, morphine, heroin, and Oxycontin, which is found in the definition section that I just made up for this example.

But the controlled substance you are found in possession is pure motor oil: no weird summertime blend that just happens to contain any of the mentioned narcotics.

Where in the words of the quoted statute are the words "motor oil"?

Nowhere, right.

My point exactly.

But the prosecutor is arguing that motor oil is controlled since there are taxes on it, it is only sold in filling stations, and has been rationed in the past. The words "containing a narcotic drug and said preparations, compounds, mixtures or substances" don't really matter since this is about controlled substances, which motor oil surely is. She even brings in loads of legislative histories dealing with the rationing of motor oil, which in her opinion proves beyind a reasonable doubt that motor oil is a controlled substance. And she has popular opinion on her side to boot.

There is the new scholarship which proves motor oil is a controlled substance.

So, Nearly everybody believes motor oil is a controlled substance since this is my example and you have to take this as a given, even though it is legally incorrect.

All the case law says that this is ridiculous because the whole wording of the statute needs to be considered. One cannot go outside of the statute, or just use part of the statute and disregard inconvenient language such as "containing a narcotic drug and said preparations, compounds, mixtures or substances". Add in that motor oil and narcotics are two different things. The intent of the legislature writing the controlled substance law didn't consider motor oil, let alone have it around ad arguendo (after all this is my example). Add in that all legal precedent says that controlled substance only applies to narcotics enumerated in my example.

If you think Heller was correctly decided, then you should have no problem with being convicted.

As I like to say:

show me the words "self-defence" in this text:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

or this one:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

You can't, can you.

I see the words "well regulated militia", but zip about self-defence.

Now, if you were charged with a crime and the actual act wasn't covered by the wording in the text, would you expect to be convicted?

Nope, any lawyer would rip holes in the prosecution. Well, except for the second amendment crowd as they would believe it was a controlled substance just because everyone believes it is a controlled substance.

Additionally, you are saying that the law can be anything a judge decides it to be irrespective of the wording or precedent since Heller was correctly decided. Popular opinion counts far more than legal precedent or proper legal method.

Is that what you really want?

He who should not be named.

There are several "Second Amendment Scholars" out there who really should be ashamed, but one pisses me off completely. It seems I am not alone. He is a law prof, which started my rant on law profs, although I have never liked the US system of legal education.

Somebody said he isn't an idiot? Maybe just an ignorant bastard. The only thing he who should not be named is good at is carpeting the internet with his opinions, which some people are beginning to see as total crap. The reason for the spouting of shit is that research scores are influenced by blogs.

I made a comment about not trusting someone who called himself Russian when he was from the Ukraine. He was born in Kiev, the capitol of Ukraine. These days, Ukrainians constitute the largest ethnic group in Kiev, and they account for 2,110,800 people, or 82.2% of the population. His response:

"I was born into a highly Russified segment of society in what was at the time a highly Russified city in a latter-day Russian Empire. I almost never heard Ukrainian spoken, and Russian was my first language."

Well, it is the capitol of the Ukraine, there might haver been a couple of Ukrainians hanging about back then. The fact that he didn't care to see them says quite a bit. It also says what an arrogant fuck this guy is as well.

Which got to my response which dealt with the fact that Ukrainians see Russians as occupiers. They were forced to speak Russian under the Soviet Union. Never mind the Holodomor, a massive famine caused by Soviet Policies.

Add in Chernobyl.

Why would the Ukrainians like the Russians?

That's just what I see as his ignorance of the history of the country he was born in. He isn't much better on his new homeland's history either.

His legal opinions aren't very good and he is a law professor, and I don't think he is a member of a bar or actually practised law. I post those qualifications on my professional webpage and would expect anyone who is a practising lawyer to do so as well.

But that is pretty typical for most US law professors not to have actually set foot in a courtroom let alone tried a case.

If his answers to law school exams were anything like his responses to my comments, then this person isn't worth the bandwidth.

Actually this exchange shows up He who should not be named for the wanker he is:

{He who should not be named is head commentator at a legal site} which I read frequently, and asked him to check what I said about the death penalty above. He is a top legal scholar who regularly posts on legal topics. His reply: "Nope, sorry, not an expert on the death penalty, and swamped. Have to pass." I suppose I had better take his name off of my "death penalty" expert list.

Funny, but I googled He who should not be named and death penalty and the web is carpeted with his opinions. My guess is that He who should not be named doesn't want to be caught out for the ignorant bastard he really is by someone who knows what they are talking about. Personally, I would remove He who should not be named name from any list of experts except for one on being an expert in self-promotion.

I don't want to name him because that would only raise his score on the computer, which is what he wants.

He who should not be named agrees with Oscar Wilde that "The only thing worse than being talked about it not being talked about".

But as I like to say, I want to get things off my chest which is why I blog. I do this for myself.

But I am not going to say this character's name because I don't want him getting any more publicity. I just hope that others see him for what he is: an arrogant wanker whose opinions aren't worth wiping one's arse with who has used the system to get himself publicity.

Editorial comment: the author is related to a Ukrainian nationalist, Stepan Bandera, who was assassinated by the Russians in 1959

Who do people in the United States appeal to?

I have to admit watching the furore over the elections in Iran and thinking about the contested Bush v. Gore election. Personally, I believe that Bush was not elected president and that there were indeed suspicious circumstances. The amusing thing was that a newspaper in Zimbabwe had an editorial pointing out that if the son of any other former head of a security service had been elected under similar circumstances, there would have been serious questions raised.

The question went to the Supreme Court which had this

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

in the dissenting opinion. Bush v. Gore dissent

That works for where I am going with this post because first off, I am a sore loser that Bush had 8 years to ruin the US and the world.

But even more upset at how the District of Columbia v. Heller, 554 U.S. ___ (2008) decision was decided. Amusingly enough, both Bush v. Gore and the Heller decision were written by the same person: Justice Scalia (editorial comment: and the dissents in these cases by the same person: Justice Stevens).

Now, if the US were a commonwealth country, it could appeal to Her Majesty's Most Honourable Privy Council which was formerly a supreme court of appeal for the entire British Empire.

Now, I realise that Heller addressed the Second Amendment of the United States Constitution, but the case was wrongly decided as "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it." [Marbury v. Madison 5 U.S. 137, 175(1803)] Meaning that the question framed by the court in DC v. Heller (ibid):

"The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

was a resounding "NO" and had been made precedent by United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I realise that McReynolds wrote this holding in an ass backward manner, it makes much more sense if the first paragraph is read after the second or to paraphrase this for the intellectually challenged:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

As far as I can tell, no deference was given to the precedent set by the unanimous decision in United States v. Miller.

Which takes me to my second point, the Second Amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Now, I have seen a couple of versions of this with various punctuation, but the verbiage is pretty much the same.

I do not see the words "self-defence".

One cannot place words or concepts into a law without their being there in the actual text.

Justice Scalia glommed in the concept of self-defence where it does not exist. In common law, this is a big no-no.

It would be nice to be able to take this to the Privy Council as they have familiarity with the common law concept of self-defence.

The right to keep and bear arms also comes from the British Bill of Rights:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Amusingly enought, as I like to point out, the real issue of the Second Amendment is the prevention of the establishment of a standing army by ensuring the vitality of the militia institution, and this:

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

is right before the clause on bearing arms.

Yet, there is loads of US scholarship which removes the Second Amendment from its role of preserving citizen militias creating a bulwark against standing armies. On the other hand, no other common law country with a similar provision has the concept of "gun rights".

Actually, shouldn't that be "arms" rights?

Another concept in the British Bill of rights is freedom from royal interference with the law. Though the sovereign remains the fount of justice, he or she cannot unilaterally establish new courts or act as a judge. Likewise, the executive should not have sway over the judiciary. Even more importantly, neither should popular opinion. The proper forum for changing the constitution is the legislature, not the judiciary.

Heller was a political decision, not a proper legal one, and Justice Scalia needs to have his wrist smacked by a higher authority (or maybe even a nun). My blog is for my own amusement and to exorcise my demons. I doubt Justice Scalia gives rat's arse what I say, but he should be ashamed to have his name attached to Heller.

And I want to point out something from the opinions above: It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. In other words, it is having faith that the proper rules of judicial decision making, that is following the law and precedent are followed, which allows for confidence in the judicial system. I need to trust that Judges will follow legal precendent and not whims.

It is a sad state of affairs if the Judges of the highest court are swayed by political considerations rather than legal ones.

I think that all should be disturbed by the Heller decision and its disregard for legal process.

Now, am I too late to file this appeal to the Privy Council?

Changes, or first thing we do is kill all the lawyers.

I've decided to add that "I have been to court more than most US law school professors ever have" after engaging in a debate with someone whose only qualifications in the law were two judicial clerkships and is now a law professor with a reputation. I am assuming that this person is not admitted to the bar since that should also be listed on his bio.

I mean I would list my bar admissions and do on my online CV. Trust me, you could figure out who I am from what I write here if you were as intelligent as you think you are: there is a mass publication article about us which is easily googled if indeed you were as intelligent as you think you are (it came up first go for me).

Anyway, as they say, those who can't teach.

The scary bit is that his blogs have quite a following: especially amongst the great unwashed. But then again, I think the masses are indeed asses.

Not sure whether to describe the blog as a circle-jerk or confederacy of dunces. Of course, that may sound like sour grapes since I tried to join his listserve and never had a response. Of course, someone with real experience in the field could be detrimental to the party. Not to mention I wouldn't want to join a club that would have me as a member.

I have no love for the legal profession in the US for a myriad of reasons: the system of legal education being the primary one. Having people trained by academics with no grounding in reality should frighten the masses. Additionally, all one need do is survive an accredited law school and pass the bar to inflict oneself upon the US legal system.

Other legal systems have ways to cull the herd, but not the US legal system. There are stagiaires, pupillages, and articled clerkships in other countries which actually ground the fledgling lawyer in the law. When I was doing my pupillage in England, the Law Society (the governing authority for British Solicitors) knocked down the number of articled clerks allowed for that year's class size. Barristers need to be admitted to chambers after they finish their pupillage. Otherwise, you can't practise law as a barrister.

Not to mention that not only do law schools have professors who have never actually practised law, but are pretty lax in who gets in with class sizes growing. Which ends up with this frightening fact that the US has half the lawyers in the world since anyone who can pass the bar exam and get admitted is admitted to practise law!