Transcript of OA329: Gun Buying and Jury Duty in America

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 329, I’m Thomas Smith that over there is P. Andrew Taurus, how’re you doing?  Mooooo!

Andrew:         Are you purposefully saying Taurus like the cow?

Thomas:         I thought – I’m sorry I thought I had the cow on for this episode, but if it’s just you then we’ll make it work.

Andrew:         [Laughs]  

Thomas:         P. Andrew human, how ya doin’?

Andrew:         Well I am probably not doing as well as the cow, right?

Thomas:         Yeah.

Andrew:         That seems like a good – I wanna be a wagyu cow, they can feed me beer and massage me all day-

Thomas:         Then slaughter you, I think, right?

Andrew:         Yeah, and then eventually my meat can be nice and fatty.

Thomas:         We all gotta go sometime, yeah, I agree that’s a good way to do it.

Andrew:         [Laughs]  

Thomas:         Alright so-

Andrew:         How’re you doing Thomas?

Thomas:         I’m doing great because it’s been a while since we’ve done a Q&A type episode and I think that’s the news being nonstop but also I think we’ve lost track of just how fun that is, I think it’s a great episode to do because our listeners ask such good questions and P. Andrew Taurus, if they were here, would give great answers, but Andrew also gives good answers!

Andrew:         [Laughs]  I try, you know!

Thomas:         So we got some great listener questions for today’s show.  I think we better get into it, what do you think?

Andrew:         Yeah, let’s do it.

Does Heller Extend to Gun Sales?

[Segment Intro]

Thomas:         Alright first listener question from Daniel Apotta, question, does Heller extend to gun sales?  I petitioned my town to ban gun sales and they cited Heller, I thought Heller only applied to ownership.  Hmm, interesting.

Andrew:         Yeah, really, really interesting question.  Worth doing a semi deep dive back into D.C. v. Heller so let’s set the stage for that.  We have talked about this in the past but folks may have not been around the first time through.  Prior to D.C. v. Heller in the 200-plus year history of the United States the Supreme Court had never struck down a federal law restricting-

Thomas:         It’s important that you word it that way because there was great con-troversy at the New York platinum night when you asked this as a Jeopardy question and I said it was one-

Andrew:         [Laughs]  

Thomas:         -because I remembered some sawed-off shotgun case, but I guess you’re sayign they’ve never struck down a law-

Andrew:         Right.

Thomas:         -but that was the only case that had touched on it or something.

Andrew:         Yup.

Thomas:         Okay.

Andrew:         The previous case, the sawed-off shotgun case, was United States v. Miller from 1939.  There’s some procedural irregularities surrounding that case, it’s kind of a weird decision but again, I think illustrative of the point that I’m trying to make.  That case said, yeah, absolutely the federal law, the National Firearms Act of 1934 that prohibits you from owning, among other things, a sawed-off shotgun, is not a violation of the 2nd Amendment. 

So consistent with that, up until 2008 the prevailing view among lawyers was that the text of the 2nd Amendment, there was a full dispute over exactly what it meant but it would not prevent a municipality from doing what the District of Columbia did, which was beginning in the 1960s the District of Columbia generally made it illegal for you to own a handgun within the borders of the District of Columbia.  So the way in which that was accomplished was that D.C. would prevent – it was a crime to have an unregistered firearm and D.C. announced as a policy that they would not register handguns.

Thomas:         Hmm.

Andrew:         It was lawful to own other types of weapons, such as rifles, shotguns, but those must be (quote) “unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or being used for lawful recreational activities such as hunting.”  [Laughing] Now, there is not a lot of wilderness in the District of Columbia-

Thomas:         [Laughs]  

Andrew:         -suitable for rifle hunting, it is a densely packed seat of government.  But the important thing here is-

Thomas:         I mean, unless you hunt the most, oh crap what was it?  The most dangerous game!

Andrew:         [In Unison] The most dangerous game!

Thomas:         [Laughs]  Sorry!

Andrew:         No, look, the important thing to keep in mind here is this law had been in effect for over 30 years at the time that Heller brought his lawsuit.  So this was a deliberate challenge engineered by the political far right on the basis of an argument that they had started waging in law reviews articles, within the jurisprudential community since the late 1980s. 

This was a pet project of the extreme right in alliance with the National Rifle Association to start arguing in journals, hey, the 2nd Amendment protects an individual’s right to keep and bear arms and therefore category restrictions like banning all handguns but allowing you to possess rifles and shotguns should be viewed as violating the 2nd Amendment, notwithstanding the fact that it has never been interpreted that way throughout our nation’s history.

Thomas:         Yeah.

Andrew:         And, you know, the law was in place and working just fine.

Thomas:         It really is the greatest trick the devil ever pulled-

Andrew:         Yeah! [Laughs]  

Thomas:         Besides a bitchin’ 360 kickflip or whatever that old tweet was.

Andrew:         [Laughs]  

Thomas:         It was like one of my favorite tweets of all time, it’s like 15 years, 10 years old now. 

Andrew:         [Laughs]  

Thomas:         Yeah, no, it really is the greatest trick ever pulled by making everybody think that this is how it’s always been and this is how the founders intended it and the founders wanted me to have any possible gun and as many of it as I would want for any purpose, any time, and they wouldn’t have wanted anybody to restrict it.  It just wasn’t the case forever until, what, 30 years ago they started the disinformation campaign to rewrite history?

Andrew:         Yup.  Yeah, they started waging that battle publicly in academia and it took another 20 years before that percolated up to the Supreme Court.  All of a sudden we had a nice conservative activist Supreme Court by 2008 and they wanted to take a swing at it.  They picked D.C. v. Heller because the District of Columbia-

Thomas:         I remember this.

Andrew:         -is directly regulated, yeah, by the federal government so you didn’t have the question [Laughing] because-

Thomas:         The states thing where the amendment hadn’t been – what is it?  Is that what it was?

Andrew:         Incorporated out to the states.

Thomas:         Yeah, yeah, yeah.

Andrew:         That is exactly right.  Rather than present a question and risk the Supreme Court saying the 2nd Amendment is not incorporated to the states which, by the way, is a perfectly defensible position.

Thomas:         Mm-hmm.

Andrew:         I’m not sure it’s where I would go because I tend to have a broad view of the incorporation doctrine, but there are federal rights that are nevertheless not incorporated out to the states through the 14th Amendment.  The chief among them is the right to an indictment by a grand jury.

Thomas:         Hmm.

Andrew:         States don’t have to follow that process, so your grand jury right in the constitution does not extend to the states by operation of the 14th Amendment unlike, for example, your 1st Amendment rights.  Those are incorporated out to the states.  So this was the perfect test case because they didn’t have to answer the incorporation question.  Once it was clear that the Supreme Court was doing the bidding of the National Rifle Association then two years later we had the McDonnell case, which was against Chicago’s gun ban, and formally incorporated the 2nd Amendment out to the states.  So let’s parse a little bit of what D.C. v. Heller says.  First, remember in all of this, the 2nd Amendment has a prefatory clause. [Laughing] Right?

Thomas:         Yeah.

Andrew:         It begins, “A well-regulated militia, being necessary to the security of a free state,” comma-

Thomas:         Yeah.

Andrew:         “The right of the people to keep and bear arms shall not be infringed.”  We’ve made the joke on the show before, it remains correct that the National Rifle Association is the only major lobbying organization that has half an amendment posted outside their headquarters.

Thomas:         Right, did you say that was a George Carlin joke? 

Andrew:         It could be, I don’t know where I heard it from.

Thomas:         Yeah, I think you said that the first time I heard it ‘cuz it’s a great line, but credit to whoever came up with it.

Andrew:         Yeah, I’m gonna continue to steal it so, you know, [Laughing] elections have consequences.

Thomas:         [Laughs]  Brilliant, that was very well done.

Andrew:         [Laughs]  Someday it will be attributed to me, yeah.

Thomas:         Mr. Torrez, yeah, awesome.  [Laughs]

Andrew:         So the question that was raised in the briefs in the Heller case was doesn’t that introductory clause mean something? 

Thomas:         You would think.

Andrew:         The traditional view, again for 200 years, was that that prefatory clause meant that the whole second part, the right that the NRA wants to seize on, the right of the people to keep and bear arms shall not be infringed, is understood in light of their service in the militia.

Thomas:         Yeah, because back in the year whatever the clownhorn it might’ve made sense that you would need to form a militia from the citizens, right?  Isn’t that what it’s based on?  Okay, we’re gonna do this whole revolution thing, well everybody grab your old muskets and we’ll just get together.  But that doesn’t seem to me, I could be wrong, it doesn’t seem to me to be the way we would do it nowadays.

Andrew:         Yup.

Thomas:         Everybody grab your drone and your tactical nuke and let’s go have a war is not really how it would work I don’t think.

Andrew:         Well, and let me – I’m gonna actually do a little sidebar on that because Scalia anticipated that objection.  Here’s what he says in Heller, he says, “some have made the argument” like Thomas Smith-

Thomas:         [Laughs]  

Andrew:         He didn’t say that part, but he does say this: “bordering on the frivolous”-

Thomas:         Yeah.

Andrew:         -“that only those arms in existence in 18th century are protected by the 2nd Amendment.  We do not interpret constitutional rights that way.  Just as the 1st Amendment protects modern forms of communications,” (see cites) “and the 4th Amendment applies to modern forms of search, the 2nd Amendment extends prima facie to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Thomas:         Yeah, but that – it’s the principle.  I get that, like of course, yeah, we kind of adapt these things to the technology of the time, but isn’t that kind of a misdirection?  Because it’s not, oh, so this would only apply to muskets, it’s the very function of the amendment, seems to me on a plain reading as a non constitutional lawyer, to be about forming a militia which is something that we don’t do and don’t need to do anymore and it’s just completely irrelevant.  Am I wrong?

Andrew:         No, I think you are exactly right.  I wanted to read Scalia’s blocking of that argument because I think it straw-mans the argument.

Thomas:         Yeah.

Andrew:         I’m gonna link in the show notes, Neal Goldfarb, a law professor, has written a really, really interesting series of blog posts that analyzes the phrase “the right to keep and bear arms” in the context of 18th century usage.

Thomas:         Hmm.

Andrew:         So the Heller opinion goes through and looks at dictionaries from 1792 and is like – in fact, let me read here because you will think I am being facetious and I am not.  “At the time of the founding, as now, to ‘bear’ meant to carry.  See Johnson 161; Webster; T. Sheridan, a Complete Dictionary of the English Language (1796) … When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose – confrontation.”  Then there’s a case citation.  “From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century.  In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”  Then they sort of go through. 

This appears to be bad history as well as bad law, and Goldfarb points out, I think, very, very persuasively, I’m gonna quote from him.  Again, keeping in mind here this is answering Scalia on his own terms.

Thomas:         Right, yeah.

Andrew:         This is assuming that we want an originalist interpretation of the 2nd Amendment and not an ordinary interpretation of the 2nd Amendment which, by the way, is the answer to his sort of strawman argument in the first place.  The way in which we know what forms of media are covered by the 1st Amendment is not by looking at dictionaries and then saying well okay, how does TV versus whatever fit in there, because for a great many years our jurisprudence treated broadcast television differently than printed journalism.

Thomas:         Hmm.

Andrew:         That may change now that we have kind of moved away from the broadcast network versus cable versus subscription models, but that understanding is an understanding formed by precedent.  It’s just not sensible to be like, well, is your local news more like a newspaper than Sean Hannity is more like a newspaper?  That’s a nonsensical kind of way to approach it and I think you properly illustrated that.  So this is assuming that originalism makes sense, Goldfarb says, “I’ll begin by considering how the right to bear arms would most likely have been understood during the Founding Era.  As I will explain, I think it would have been understood to have meant something like ‘serve in the militia.’”-

Thomas:         Hmm.

Andrew:         “All else being equal, one would expect bear arms to have been understood to mean the same thing in the Second Amendment that it was ordinarily understood to mean.  This suggests, first of all, that it would most likely have been understood as an idiom conveying a sense related to the military, rather than being understood to mean ‘carry weapons,’”-

Thomas:         Interesting.

Andrew:         -“whether for purposes of being ready for a confrontation or otherwise… the idiomatic, military-related sense overwhelmingly dominates the data at the time.”

Thomas:         So is he saying it’s more like to take up arms kinda?  Like you wouldn’t restrict people from being able to be a part of a militia in this way, it doesn’t mean you carry around guns all the time, is that what he’s saying?

Andrew:         That’s exactly right, yes.  So he says “it is likely that bear arms in the Second Amendment would have been understood at the time to mean serve in the militia rather than participate in hostilities.”

Thomas:         Right.

Andrew:         Then he says, “I base this conclusion on two factors.  The first is that it’s consistent with the fact that it was possible for someone to serve in the militia without ever doing any fighting or otherwise participating in hostilities.”  That is evermore true today.

Thomas:         Yeah.

Andrew:         It was true in 1792, it’s super true today.  Less than 5%, I think, is the last figure that I saw of individuals enlisted in the military are serving in a combat capacity, most people serve in a support capacity.

Thomas:         Hmm.

Andrew:         Now that specialization has changed, but even in the 18th century you might distinguish between serving in a militia-

Thomas:         Right, there’s gonna be all kinds of functions that don’t involve shooting a musket, even in old timey military times.

Andrew:         Exactly right.

Thomas:         Strategy, communication, supplies, all this stuff.

Andrew:         Yes.  Then he says, “The second is that there is a pretty strong reason to think that bear arms was understood to mean the same thing with respect to the right to bear arms as it meant with the respect to the duty to bear arms

Thomas:         Hmm.

Andrew:         And that duty was understood as a duty to serve in the militia.  He says, look, that was dismissed out in Heller as not meriting serious consideration.  We just read that portion, they were like no no no, we went through the dictionary so we’re not even gonna consider this argument.

Thomas:         I can’t say I follow this one.  What does he mean by that?

Andrew:         So I’m gonna go through.

Thomas:         Okay.

Andrew:         So he looks at – he begins with several historical texts that bear on life in 18th century America.  One by historian Saul Cornell and, by the way as another sidebar, that’s another good reason why originalism is nonsense.

Thomas:         Yeah.

Andrew:         As lawyers, we’re not trained to – I don’t know who Saul Cornell is, I can look him up-

Thomas:         [Laughs]  

Andrew:         -but I’m not trained to evaluate whether somebody is doing good history or bad history.  I can do so as an intelligent person, but I’m not-

Thomas:         Shouldn’t be your job, though, your main job.

Andrew:         Yeah!  It’s not my job!  It’s not lawyers jobs, it shouldn’t be the Supreme Court’s job.  But weirdly we can have originalist Neal Gorsuch thunder in print about how it’s not the job of the courts to figure out the implications of laws or whatever, but sure, it is the job of the courts to figure out which old timey dictionary is correct, right?

Thomas:         [Laughs]  

Andrew:         That’s nonsense, but anyway… So Cornell argued at length that during the founding era the right to bear arms was regarded as a civic obligation.  The right was bound up with a duty for eligible citizens to serve in the militia.  Here he quote from Cornell, “Citizens had both a right and an obligation to arm themselves so that they might participate in the militia.”  That was cited in an amicus brief but the court just decided not to go with it, didn’t engage with the argument.  Then there is repeated references to various states because, again, remember there was no incorporation doctrine prior to the 14th Amendment. 

It was understood, 1789, that the Bill of Rights and the Constitution applied only to federal action, so that’s why every state has state bills of rights and they, as we’ve talked about, in some ways they mirror the federal Bill of Rights and in some ways they may expand, they may go beyond, they may offer additional protections.  So looking at colonial bills of rights, looking at what the state colonies passed is illustrative of – helps shed some light on what in common parlance was thought of as the right to keep and bear arms?  Very persuasively it shows that many states had the right to keep and bear arms as not just a right but also imposing a concomitant duty.  So Delaware, keeping and bearing arms is both a right and a duty in their colonial charter. 

The Society of Western Gentlemen proposed revisions to the Virginia constitution which would have added a right to keep and bear arms and their proposal was the people have a right to keep and bear arms for the national defense, standing armies in times of peace are dangerous to liberty therefore the military shall be subordinate to the civil power, a separate provision would have made bearing arms a duty, the community have a right of every individual, his personal services, when necessary for the common defense. 

So that’s that second argument, is that the phrase “the right to keep and bear arms” has an idiosyncratic meaning and in the 18th century would have been understood as applying in the context of service in a militia.  So did that kind of clarify and make sense of the argument?

Thomas:         Well I think so, but it sounds to me that that’s similar, I thought this was gonna be a different point than the first one but it kinda just sounds like the same point said-

Andrew:         Yeah, it’s additional evidence for the same point.

Thomas:         Oh, okay.  Okay maybe that was my confusion.

Andrew:         No no no!

Thomas:         I thought it was a distinct point. 

Andrew:         Yeah.

Thomas:         Okay.  Especially when you talk about the potential to make bearing arms mandatory.

Andrew:         Mm-hmm?

Thomas:         Was apparently on the table for some of these states?  If they meant carrying around a gun that’s absolute nonsense whereas if they meant, no, you can be called upon to serve in the militia or whatever it would be then it makes a little more sense for that time.

Andrew:         Here, again, if we’re roleplaying as originalists it is important to understand contextually the environment in which this is coming up.  The environment in which this is coming up is there are red coats patrolling the streets in the colonies, the Boston massacre-

Thomas:         Mm-hmm.

Andrew:         The idea was having a standing army is how Britain oppressed its colonies, so the idea was it’s a very, very bad thing to have a standing army.  But you know what else is a bad thing?  Not having a standing army and having a country come in and, you know-

Thomas:         Right.

Andrew:         Conquer you.  So the solution that was widely popular in the United States at the time was, okay look, we’re not gonna have a standing army because we’re not interested in conquering other lands, we just wanna be left alone, but if we get invaded by Britain-

Thomas:         Mm-hmm.

Andrew:         -or others, then we want to be able to call up our citizenry to-

Thomas:         Yeah, but we didn’t get invaded by Native Americans who were already here while we were there. [Laughs]  

Andrew:         Well, you know, put a- [Sighs]

Thomas:         Yeah, I know, I’m just teasing you.

Andrew:         I’m giving you the mindset – no no no, it is always worth pointing out the settler colonialism mindset that we have in this country.  But from their perspective they were like look, yeah, the way in which we avoid the evils of a standing military is by having this concept of national service to defend the country by being called up in a militia.  So that’s that first section and that focuses in on the phrase “right to keep and bear arms.”  I’ve used this analogy before and I’ll continue to use it, the difference between an idiomatic definition and a word by word definition-

Thomas:         Yeah.

Andrew:         -is the difference between defining a hot dog as a food item or defining it as a flaming poodle.  You can do that, but in general when there is common idiomatic use we understand that parsing the words individually leads to absurdities.

Thomas:         Will change the meaning at the very least.

Andrew:         Yeah, absolutely!  That argument about what the right to keep and bear arms was as Goldfarb points out just dismissed entirely in Heller.  Where Heller did focus was on whether the prefatory clause and the language in the second clause that says “the right of the people to keep and bear arms,” whether that is a collective right enjoyed by a militia in which you have individual membership or whether, eh, it says people but it really means individual.

Thomas:         Hmm.

Andrew:         Again, part of the game here was to convince the American people that well of course it’s individual and, in fact, Breyer’s dissent says “we agree that it’s an individual right.”

Thomas:         Wow.

Andrew:         That concedes far too much ground.  Again, prior to 2008 there was no Supreme Court case holding that the 2nd Amendment guaranteed an individual right and I’m not gonna go through, like I said I’m gonna link the article in the show notes, Goldfarb very, very comprehensively lists 16 citations that shows that right to keep and bear arms as part of a militia is one that consists of the body of the people-

Thomas:         Mm-hmm.

Andrew:         -and not applies to an individual outside of the militia context.  This is I think very, very hard to dispute, so I will leave it in there.  But, again, the Supreme Court just says nope, it is conceivable that keeping and bearing arms can mean outside the military service context so therefore we are going to recognize and preserve it.  Here’s where we get [Laughs]  I guess 24 minutes of preface.

Thomas:         I was gonna say, this isn’t really a listener question episode anymore, it’s just a deep dive with an excuse of listener questions, with a dusting of listener question, but that’s okay.

Andrew:         Because the answer to the listener question, and again, I want to read specifically from Heller because Heller does go through and says, okay, that means you have the right to own weapons for personal defense and the handgun ban takes away your right to own those weapons for personal defense and therefore violates the 2nd Amendment.  Daniel says look, okay fine, you have the right to own them but that doesn’t mean you have the right to buy them-

Thomas:         Hmm.

Andrew:         It just means that we can’t prohibit you if you’ve already purchased them so why would Heller apply to sales?  It’s a really, really good question.  The way in which you would ordinarily answer this is that typically when the Supreme Court announces a brand new right that they have just discovered they explain the contours of that right.  They say, okay, this right applies whenever there is a law that lacks a rational basis or wherever there is a law that otherwise you would give some kind of balancing test and say this is what triggers the 2nd Amendment and balances out the interests and this is what’s within the 2nd Amendment. 

Heller very clearly does not do that and lays out no test for what falls within the 2nd Amendment and what falls outside of the 2nd Amendment.  Scalia rather straight facedly says “well you know, this is really the first time we’ve come up with this so, you know, it’s not really fair to hold that against us that we don’t exactly define where this is triggered and where it isn’t.”  If you think I’m being unkind to the deceased Scalia let me read directly from the Heller opinion. 

This is responding to the very cogent point in Breyer’s dissent that says look, you don’t tell us what violates the 2nd Amendment and doesn’t so this opinion is nonsense.  (Quote) “Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible.  But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds, our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.  And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” (End of quote). 

That’s pretty remarkable as a statement.

Thomas:         Yeah.

Andrew:         To say, look, all we really care about is saying the 2nd Amendment absolutely says what the NRA says it does, we wanna strike down this law and the fact that we can’t tell you what laws are in and what laws are out, eh, you know?  There’s time enough to figure that out.

Thomas:         Psh, I got a lot to do, I’m busy.

Andrew:         Yeah!  And one might reasonably ask, oooh, 230 years after its adoption seems a weird time for having the first (quote) “in depth examination of the 2nd Amendment” (end of quote).

Thomas:         Yeah.

Andrew:         That kinda seems like you’re making it up, doesn’t it? 

Thomas:         [Laughs]  

Andrew:         Indeed, I believe that they are making it up out of whole cloth.  I will tell you, we discussed parenthetically in episode 309 when we were talking about the amicus brief filed by Rhode Island senator Sheldon Whitehouse that that amicus brief kind of laid out the activism by the Roberts court. 

That amicus brief was filed in a pending case, will be heard probably, oral arguments, by the time this episode airs, in a case called New York State Rifle and Pistol Association v. New York and that involved a New York ban on transporting handguns that said you have to put trigger locks on the handguns and rightfully terrified that this Supreme Court would be looking for an activist way to say “oh no that definitely violates the 2nd Amendment that I can’t drive around with a loaded gun in New York City.” 

The legislature actually repealed that law while it was being appealed to the Supreme Court which should moot the case but the Supreme Court granted cert anyway.  They granted cert anyway because this is an activist right wing court looking to do the bidding of the National Rifle Association.  There is no justification.  We actually talked about this in our last Q&A a couple weeks ago, somebody asked “what about a municipality or state passing laws”-

Thomas:         Yeah.

Andrew:         “And then once they get challenged immediately repealing them.”

Thomas:         Doing this one weird trick.

Andrew:         Yeah.  This was not done in bad faith, there was a law in the books, it got challenged and the New York State legislature was like, you know what, we don’t wanna lose this so we’re gonna repeal the law.  There’s absolutely no implication of bad faith and the New York State Rifle and Pistol Association was like no no no we want a ruling on this anyway.  And the Supreme Court appears poised to give it to them-

Thomas:         Wow.

Andrew:         Even though that is manifestly rendering and advisory opinion, so be on the lookout for that.

[Commercial – enter promo code “OA50”]

Andrew:         So the answer in all of that is Heller can mean whatever the hell you want it to mean, it was deliberately vague, it announced an individual right to keep and bear arms, it said that militia clause is just kidding it doesn’t really matter, it disregards the history in favor of a sort of plain language meaning of the terms that fails to understand their idiomatic context, and it can mean whatever the court decides that it means by design.  So your city council is not wrong?

Thomas:         Mmm.

Andrew:         I mean, they still are wrong, they should still pass the ordinance, but that’s why. 

Thomas:         Yeah, I just think it’s also so funny to put a pin on that, I love that the super originalist Antonin Scalia is doing all this parsing of what the originalist language means and the end result is that the first part of the amendment is absolute garbage and meaningless?  How does that – isn’t that contradictory? [Laughs]  Here, we wanna go with what the founders intended, let’s throw away the first part of what they said for no reason. 

Andrew:         Yeah, there is – it’s a long section, it is part A2 where they say, okay, “The prefatory clause reads: ‘A well regulated Militia being necessary to the security of a free State…” then it goes through, again, looks at some history but in a way that is, look, this reading of it as nothing [Laughs]  is “fully consistent with the ordinary definition of militia as all able bodied men,” so “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”  So the way in which you read this into nothingness is you say, yeah, militia meant everybody.

Thomas:         Mm-hmm.

Andrew:         And because militia meant everybody – that meant all white men, but you know, in 1789 that’s all that counted.

Thomas:         Mm-hmm.  I just picture Ralph Wiggum saying “I’m a militia!”

Andrew:         [Laughs]  Yes, you should.  Then that means that it really has no operative controls.  Then they say “we reach the question:  Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly”-

Thomas:         [Laughs]  

Andrew:         -“once one knows the history that the founding generation knew and that we have described above.  That history showed that the way tyrants had eliminated a militia consisted of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.  That is what occurred in England that prompted the codification of the right to have arms in the English Bill of Rights.” 

That is, again, an NRA fantasy reworking of history.  We’re long familiar with these sort of narratives of suppressing all gun ownership was the way in which tyrants maintained their political strength.  Not true as a matter of history and also not remotely responsive to the problem with Heller which is one could easily look at that and go right Antonin, I get it, we live in a country in which it’s not possible to say you may not own any guns, but D.C. didn’t say that!

Thomas:         Mm-hmm.

Andrew:         D.C. said you wanna own long guns, you wanna own rifles, you wanna own shotguns?  Have at it.  What you can’t have are pistols, and you know why you can’t have pistols?  Because we’re a densely packed city that has a tremendous amount of handgun violence and it’s super hard, particularly in the summer, to walk around with a rifle under your trench coat but it’s super easy to stick a pistol in your short pockets, so we’ve made a rational determination to restrict that subset of firearms, and by the way for 30 years nobody, left, right, or center, thought that was a problem until you guys wanted to come down and take the Democratic option off the table.

Thomas:         [Sighs] What a clownhorn.  This is such a monumental thing that they did.

[Commercial –]

Thomas:         Alright, well as usual Andrew you took a lot of time to answer that very good question and that’s great, we got a good deep dive out of it, but now we are kinda gonna be more in lightening round mode. [Laughs]  

Andrew:         Alright, absolutely.

What Makes a Good Juror?

Thomas:         So here we go.  Cyngin asks, what should you do if you’re ever selected for jury duty to make yourself a good juror, and two, should we have a law put in place where we have to teach how to be a good juror in school kind of like a civics class but for jury duty?  That’s a nice civically minded question.  Yeah, we’ve seen plenty of ways to be bad jurors.  [Laughs]  

Andrew:         Yeah!

Thomas:         It’s definitely not – from how you’ve talked about it the legal system certainly does – it seems like it just assumes you’re all gonna be good jurors but no!  [Laughs]  

Andrew:         [Laughs]  

Thomas:         So what do you think about this?

Andrew:         Yeah, that is right.  So let’s work backwards.  I love the idea of having that be part of civic participation and let me expand on that a little bit.  I’ve said that I’m kind of sad that I feel like I’m never gonna get to serve on a jury.  [Laughs]  So A, I’m a little sad that I’m not gonna get to serve on a jury, and B I think it is not hard to sort of change the prevailing mindset. 

For 30-plus years we’ve sort of had this mindset of ugh, jury duty and how do I get off, it was part of a – George Carlin has a comedic routine from the 80s in which he’s like “you wanna get out of jury duty?  Don’t try to tell them you’ll be a bad juror, tell ‘em you’ll be a great juror because you can spot guilty people just like that!”

Thomas:         [Laughs]  

Andrew:         And it’s pretty funny, but prior to that it was sort of thought of as a noble part of civic participation and I’d love to see us recapture that.  In terms of what you can do, I think the biggest misconception that people have about juries is the function of a jury is to figure out the facts.  Why juries are valuable is because in a trial we have decided that we want the opportunity for filtering truth.  We’ve talked about this issue in terms of – a couple of weeks ago when we talked about what hearsay is and what hearsay isn’t, right? 

The way in which information is introduced in a trial is by testimony of witnesses and what a juror has to do is figure out, okay, which witnesses are credible?  Witness A says it’s X, witness B says it’s not X.  How do I put those together?  I could say I think witness B is lying, or I can come up with some kind of nuanced picture where they both might have a good point and the way in which I synthesize this is through it’s neither X or not X, it’s really this other conclusion.

Thomas:         Hmm.

Andrew:         The value of a jury is that way, instead of just – if you have a bench trial the person who makes the credibility decisions is the judge.

Thomas:         Mm-hmm.

Andrew:         I can think of lots of reasons why a judge might assess a witness differently than 12 ordinary people.

Thomas:         Yeah.

Andrew:         So that’s the beauty of it, and what I would say is the most important thin, if you’ve seen 12 Angry Men you’re sittting there thinking okay, I’m gonna have to go in and figure out the law.  The jury instructions are gonna tell you.

Thomas:         You’re gonna go investigate the case? 

Andrew:         Yeah! [Laughs]  

Thomas:         Turn over a few, find some leads.

Andrew:         There’s a little bit, if you haven’t heard our Law’d Awful Movies, we did 12 Angry Men which is still such a fantastically well shot and acted movie but the law is terrible.  But yeah, I would say every single time think about how does this witnesses testimony mesh with the overall story?  How does it mesh with the other witness that’s speaking on this subject and who do I find credible and why? 

That I think is the most important task and then you will be given the set of instructions as to how to apply those facts to the law.  They will say you must find in favor of the plaintiff on the count if you find that they violated their reasonable standard of care, so they’ll tell you that’s what the law is and then it’s up to you, looking at the witnesses, to go okay, did they take enough care or did they not take enough care?  

So that’s the focus that I would give for somebody that has jury duty.

Thomas:         Alright, I like it.  Good stuff and pretty reasonable lightening round answer, Andrew, nice job!

Andrew:         Thank you!

Difference Between Jurisdiction and Justiciability

Thomas:         Alright, let’s see if we can knock out one more lightening round question.  Now I have to say I’m not familiar with this name.  K-a-r-l-e-s.  Interesting.  Karles?  Karless?

Andrew:         I would say Karles.

Thomas:         Karles McQuade asks, in OA 294 you mentioned that Congress, according to Article 3 Section 2 of the Constitution has some power over the Supreme Court in determining what topics fall under its jurisdiction.  So for a given topic, what’s the difference between that topic being nonjusticiable and the Supreme Court not having jurisdiction over that topic?  Hmm, sounds technical.  Interesting question.

Andrew:         Yeah, excellent question, I love it.  Remember that the federal judiciary is a judiciary of limited jurisdiction.  I get that the root word is the same.  A case that is nonjusticiable is not a question for the judiciary to decide.  So if I go and I file a lawsuit and I say I want a declaration that Thomas Smith is my friend, that’s a nonjusticiable question.

Thomas:         I’ll justish that for you right now!  Absolutely yes!

Andrew:         [Laughs]  Good!

Thomas:         Case closed!

Andrew:         Case closed, right!  But that’s not a question-

Thomas:         Yeah.

Andrew:         -that courts decide.  The courts would say that’s a nonjusticiable question.  Now, again, I’ve picked an extreme example because it [Teeth Clenched] seems ridiculous to me that the District drawing my congressman is a nonjusticiable question, but there ya have it.

Thomas:         Yeah.

Andrew:         It means this isn’t the kind of thing that a court decides.  On the other hand, jurisdiction says suppose this is the kind of a thing that a court decides but-

Thomas:         Just not this court?

Andrew:         Yeah, you have to be in the right court.

Thomas:         Right.

Andrew:         So perfect example of that-

Thomas:         Friend court!  We have to go to friendship court!

Andrew:         [Laughs]  Exactly, there we go.  Look, State courts are courts of general jurisdiction, so a state could create a friend court if they wanted to.  I might be in favor of that, who knows? 

Thomas:         Yeah.  Finally we’ll get our case heard, Andrew!

Andrew:         Well we’ve got a stipulation so I’m satisfied with that.

Thomas:         [Laughs]  

Andrew:         But so, again, classic example, suppose I’m in California and we agree to an exchange, I say alright I’ll give you a hundred bucks you make sure you bring down this set of plates to our live show so that I can feed all our platinum night attendees.

Thomas:         Might happen, yeah.

Andrew:         Then I give you the hundred bucks and you don’t bring any of the plates.  I can sue you, but I can’t sue you in federal court, I can’t sue you in the Supreme Court.  Even though the case is obviously justiciable-

Thomas:         Very important.  Oh, sorry.

Andrew:         Yeah, it’s a breach of contract!

Thomas:         Supremely important.

Andrew:         But the court lacks subject-matter jurisdiction to hear that case because there’s not federal interest that is implicated.  Again, the primary two federal interests that get implicated, how you get into Article 3 courts is either there is a dispute between citizens of different states, the founders thought it was important that in a dispute between citizens of a different state you not get homered so that’s why you get to go to federal court if it’s a sufficiently weighty matter. 

Right now the amount in controversy is $75,000 and it’s between citizens of different states you get to go into federal court, that’s called diversity jurisdiction.  Or if you violate a federal law.  Federal courts have an interest in enforcing federal law.  So in a diversity case they can enforce state laws, federal courts can interpret state law and that’s within their purview but it has to meet the diversity requirements or they can interpret federal law. 

The important part there is there are lots of cases that are justiciable but are nevertheless not within the jurisdiction of the courts, and I’m only talking about subject-matter jurisdiction there, there is the separate case of personal jurisdiction and the easiest way to think about that is suppose you live in Utah and you’ve never been to Montana I can’t sue you in Montana.  Even if otherwise everything else, I can’t sue you in the state courts of Montana even though they have general jurisdiction because that court has no personal jurisdiction over you if you have never subjected yourself intentionally to the laws of Montana.  You might be like I’m totally happy in Utah, I don’t wanna go to Montana, so-

Thomas:         What about badmouthing Montana on a podcast?  Does that subject me to-

Andrew:         It actually does.

Thomas:         Ooh.

Andrew:         There is some case law that suggests that when you place an item for commerce, in interstate commerce, that you are subjecting yourself voluntarily to the jurisdictions-

Thomas:         Well that means we’re subject to everything!  Every law.

Andrew:         Of all of the states in which-

Thomas:         Earth.

Andrew:         Well, again, the United States.

Thomas:         But why?  [Laughs]  

Andrew:         But all of the states in which this podcast airs.

Thomas:         If it can go to a state that I don’t live in because we aired a podcast why can’t it go to a country that I don’t, like … I guess they can’t extradite me or whatever, but still they could be like “hey, somebody listened your podcast in our country and we’re mad at you,” hypothetically.

Andrew:         [Laughs]  I can’t explain that difference here in the lightening round.

Thomas:         Oh, okay, sure, sure.

Andrew:         But I will tell you on the downstream theory of commerce, in some ways you want that.  You want, if I manufacture chainsaws in Virginia and I sell that defective chainsaw in California, you want to be able to sue the chainsaw manufacturer in California.

Thomas:         Mm-hmm.

Andrew:         The law would be like, yeah, even though they’re based out of Virginia they’re selling their thing in California.

Thomas:         Yeah.

Andrew:         So they voluntarily subjected themselves to the law there.

Thomas:         Just sayin’ we have international patrons.

Andrew:         Yeah, interstate commerce, this is an area where we are applying the doctrines that were developed in the 19th and early 20th century to commerce over the internet.

Thomas:         Mm-hmm.

Andrew:         I think it would be crazy – suppose you have a hobby business, right?  You sell custom jewelry online, you’re based out of Virginia and you sell one piece of jewelry in California you weren’t really – it’s not like the chainsaw manufacturers.  Those people engaged in separate contracts and were like yup, our distributors are going out and selling chainsaws in California. 

This person just put up their thing, an Etsy store, on the internet.  They don’t care where the purchaser comes from and it may be a very, very small amount, but nevertheless there are some court cases that suggest nope, sorry.  Same principle, you are just like Black & Decker here and we’re gonna hold you responsible to show up to respond to your lawsuit in California.  So an area where maybe there will be change in the next 20 or 30 years because I’m not sure it makes a ton of sense, but there you go. 

Thomas:         Alright.

Andrew:         Hopefully a good answer on the difference between nonjusticiable and jurisdiction.

Thomas:         Yeah, it sounds like if something’s nonjusticiable it’s nonjusticiable everywhere versus with the jurisdiction there might be a different court that would handle the question you’re talking about.

Andrew:         Exactly right.

Thomas:         Okay, good distinction there.

Andrew:         That’s the lightening round way to handle it! [Laughs]  

Thomas:         Yeah, that’s okay-

Andrew:         I helped you get there!

Thomas:         I think you did a pretty good lightening round job, maybe your best ever to be honest, because we are just barely done in time here.  Now it’s time for Top Patron Tuesday, Andrew!  Our fine patrons over at, our hall of famers, our all time greats!  Also a little side note, we wanted to make sure Andrew was back in these fine United States of America to do the Patron Q&A because with the internet on the ship and the vacation and all that there was no way we were gonna be able to do a Q&A so we’re delaying that, sorry everybody but we wanna make sure it’s back and better than ever and that Andrew can actually do it, right?  Seems sensible to me.

Andrew:         Me too.

Thomas:         So that said, let’s thank our top patrons, our hall of famers, our all time greats!

[Patron Shoutouts]

Thomas:         Alright well that’s awesome, love our top patrons, and now it’s time for T3BE.  Let’s find out if I managed to get a real property question right?

Andrew:         Question mark?

Thomas:         Probably not, we’ll see.

T3BE – Answer

[Segment Intro]

Andrew:         So this was an example, landowner verbally – it says orally [Laughing] but I’m gonna say verbally to avoid giggling uncontrollably like we did last time.  Landowner verbally gives permission to his neighbor for a right of way, for use over the private road that was on his land so that the neighbor could more easily access his own land.  Only the landowner maintained that road.  Then after three years the landowner – and this tripped you up, I’m gonna tell you this has nothing to do with the question – conveyed his land to a grantee.  Thomas, you were like “what does it mean that he’s conveying?”  Literally all that means is he sold it.  A grantee is-

Thomas:         Yeah.  Well grantee was the word, the conveyance that’s all cool but I, you know, we’ve had a lot of these and I don’t remember grantee being the thing, but when I saw letter D anyway because it said in that answer-

Andrew:         Was purchased, yup.

Thomas:         Grantee purchased the land so I was like okay, never mind.

Andrew:         Yeah, grantee just means the person who bought the land.  So, guy buys the land-

Thomas:         Right.

Andrew:         -then tells the neighbor, yeah, the gravy train stops here, I bought this land stop using my road.  The neighbor then sues for a declaration that they have a right to use the road. 

Thomas:         I’m just picturing like the neighbor had a gravy train, that’s actually what the road was being used for was a gravy train.

Andrew:         [Laughs]  Mmm, tasty tasty train full of gravy! [Laughs]  

Thomas:         Why would you ever wanna stop the gravy train!  I’m just using your road for this delicious gravy.

Andrew:         [Laughs]  Exactly!  So, who is likely to prevail?  You eliminated A and D.  I will tell you, both of those are good eliminations.  So you said A, the grantee because-

Thomas:         Not terribly surprising.

Andrew:         -an oral license is invalid.  That’s just wrong.  A license does not have to be in writing, you can orally say yeah, use my road.  So the license was valid, A is a bad answer.  And you eliminated D, the neighbor because the neighbor’s use of the road was open and notorious when the grantee purchased the land.  Actually it is open and notorious which I’ll explain in a second, but this is the least-attractive attractive distractor ever.  Open and notorious is a criterion that is used in adverse possession.  Adverse possession is when you come to own property that is not yours by using for a long, long period of time.

Thomas:         Right.

Andrew:         It has to be within the statutory period, generally 20 years.  Here the neighbor uses the road for 3 years, 3 years is not nearly enough time to adversely possess it, not that there would be adverse possession here anyway-

Thomas:         Gotcha.  But I gotta call BS on this open and notorious.  What makes something open and notorious?  This is about as unopen as a thing can get.  They have oral permission and that’s it.

Andrew:         Oh, no, but it’s the use that’s open and notorious.  That is you’ve done so in a way that the landowner can take notice of it.  So the classic case of-

Thomas:         Oh, so it’s merely to the landowner-

Andrew:         Exactly.  Right.

Thomas:         Not to like the townsfolk.

Andrew:         [Laughing] Yeah.

Thomas:         [Laughs]  Okay, gotcha, alright fine.

Andrew:         The reason for that is because in order to adversely-

Thomas:         It’s because of the – yeah, yeah, yeah.

Andrew:         If you’re the landowner you have to know that somebody is using your land, it’s one of the many criteria that you have to fulfill for adverse possession, so if I’ve secretly used your land-

Thomas:         Well I kinda lucked out there.

Andrew:         Yeah, you did.  So then it’s between B, your answer, the grantee because the neighbor had a license that the grantee could terminate at any time, or C, the neighbor because the grantee is estopped from terminating the neighbor’s use of the road.  Thomas, I am pleased to tell you, you got this one right.

Thomas:         Alright!

Andrew:         Totally straightforward, exactly the way you would think that this would play out, which is a license is terminable at will by the person granting the license and that’s what happened here.  So in other words, the landowner could easily say “hey, dude, I know I said you could travel across my road but I’m done with that now, stop using my road” and that’s perfectly reasonable.  It’s his land, he gets to do what he wants with it.  The estoppel question is foreclosed in this fact pattern by the fact that only the landowner is maintaining the road.  So in other words-

Thomas:         Yeah.  Yeah, I was thinking that could come into play if the facts were a little different.

Andrew:         Yup.  So think about that, in the alternate universe where the landowner says “hey dude, you can use this road but I’m just gonna need you to maintain it, if you want to maintain it then feel free to”-

Thomas:         Yeah, yeah.

Andrew:         Then you would have an arguable application of estoppel.  You would say, yeah, I spent money-

Thomas:         Right.

Andrew:         -to maintain your property, you can’t just take away my right to use it.  But if he’s just given you the right to use it that’s a license, can terminate it at any time which was the answer you picked, answer B.  Congratulations!  Good job!

Thomas:         Well there you go!  That’s how it’s done everybody.

Andrew:         That is how it’s done.

Thomas:         Yeah.  Easy.  Bar exam’s too easy for me!

Andrew:         [Laughs]  

Thomas:         No, I got a long way to go to get to the 60% though, I don’t think that’s ever happening, but maybe I can inch closer to 55.  Alright well that was cool, I killed it.  Let’s find out who this week’s big winner is though with future time traveler Andrew Torrez, everybody.

Andrew:         Yeah!

Thomas:         Or maybe Brian-

Andrew:         And that person or Brian or someone will go right-

[Segment Intro]

Brian:             This week’s T3BE winner is Kingo Baby who writes “I’m guessing B, as Andrew always so happy when Thomas gets an answer right.”  Congratulations Kingo Baby, we all like hearing Andrew happy.  Give Kingo Baby a follow on Twitter, @Per_Kingo.

Thomas:         Alright, thanks so much for listening, everybody!  Great questions, good job Andrew on the answers of course and again, pretty good lightening round, I’ll give it to you.  I even tried to mess with you a little bit and get you to go longer, but-

Andrew:         [Laughs]  

Thomas:         You did it!  Thanks for listening, thanks most of all to our patrons for making the show happen and we will see you next time.

[Show Outro]

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