- Here are two videos with about twenty minutes of debate about whether this association should hire our law firm. My favorite part happens about three minutes, twenty seconds into the second video when someone accuse my firm of being the illumati! (or actually I think they accuse use of being members of CAI (a trade organization--Community Association Institute--which we are) and CAI is like the illuminate, so we are too, by association). It seems like their main complaint is that our firm sues homeowners. I know people don't like it when the association sues them or their neighbors, but how else are associations supposed to collect assessments or enforce their rights?
- Lots of interesting stuff has been written about McDonald v. Chicago, because oral arguments happened this week. The case deals with whether the newly discovered/affirmed Second Amendment right to bear arms for self-defense is binding on the states. Here's my original take on the problem that incorporation poses for originalists. The short of this dilemma is: what an originalist does when almost all the other rights in the Bill of Rights have been "incorporate" against the states, but in order to incorporate the Second Amendment, you'll have to use the doctrine of substantive due process, which many originalist consider to be specious, judicially-created doctrine. I recently realized that I don't think the dilemma is going to be much of a dilemma because there is an out for Thomas. (Scalia has already accepted incorporation through "substantive due process" basically a concession to precedent, so he's just going to go with that.) Thomas will have the opportunity to use the privileges and immunities argument, overruling 140 years of case law, true, but sticking to originalism to incorporate the Second Amendment. Here's an explanation of the privileges and immunities. Here's an op-ed about privileges and immunities clause and originalism.
- Sorry number 2 didn't make any sense! I tried!
- Originalism is a harsh mistress. Or is it just the constitution? It has these provisions like "privileges and immunities," "due process of law" or even "congress shall make no law . . . abridging the freedom of speech." So what do you do to flesh out these provisions? One answer is you leave it to congress to figure out the parameters of these rights. But then the constitution is a limit on congressional power. So you have to flesh out the provisions, otherwise what's the point of having a constitution if a simple majority can expand, diminish or eliminate the right? An originalist can then look to history; to the original understanding. But then historians don't agree, or there isn't much history. In those cases, you're basically just left to your best judgment in some instances it seems.
- Take the Heller opinion, for example, which held that individuals have a right to bear arms for self-defense. The language of the amendment says, "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." That sounds like it's not an individual right, but a right of military personnel. Otherwise the "militia" language is gratuitous. Historians don't agree on the original understanding, with some saying its and individual right and others a collective right for military personnel. I don't know all the history, but the argument that works best for me is not historical: If this is a "collective right", what would be the point? It's a right of a group of people that the government controls? That's means the government can deny the right completely. And isn't the Bill of Rights supposed to contain restrictions on the government? If this was a collective right, then the government is not restricted. For this reason, I side with the Heller majority. Is that textualism, purposivism, or just a policy argument?
- Orin Kerr argues here that you should be careful cross-examining a judge. True enough Although I have to quibble with one argument. Judge Posner and Easterbrook are too very famous conservative-leaning academic judges on the Seventh Circuit, and they voted against incorporation of the second amendment, with Judge Bauer. Then some crank threatened them, saying they should be shot, and putting their job information and pictures on the internet. Here's the defense attorney crossing them:
"Orozco[the defense attorney] asked the judge, “If it’s overturned, doesn’t that mean Hal Turner is correct?” At that point, laughter was heard through the courtroom.
Judge Easterbrook said no, for two reasons. First, the central issue — whether the Second Amendment applies to the states — is one for the Supreme Court, the judge said. Therefore, a reversal would in fact confirm that the case had been rightly decided."
This last sentence makes no sense to me. How does getting overturned confirm that the case was rightly decided? I can't see how being overturned can ever confirm that you were right. I'm guessing that, because this isn't a direct quote, the journalist just screwed up.
7. Who are the 5 people that most annoy you one TV (Or, just in showbiz if TV is too narrow). And not for political reasons, because that's too easy. Here's my list.
- Tyra Banks
- Billy Bush
- Andy Rooney
- Al Roker
- The fourth Judge on American Idol (because three is plenty)
