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The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error:

Every year the Denver University Law Review publishes a Tenth Circuit Survey. In the forthcoming issue, the lead article is my examination of the Tenth Circuit's record on the Second Amendment issues. My conclusion:

The Tenth Circuit's three-decade record of Second Amendment cases was a disgrace to the rule of law.

It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.

The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit's jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.

The reason that the Tenth Circuit's Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.

Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.

Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.

It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.

That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson's observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here.

Daryl Herbert (www):
Nobody forced the Tenth Circuit to propound a grand of the Second Amendment

Grand view, you mean?
1.17.2009 2:54pm
Thoughtful (mail):
I was going to suggest you left out the word "theory", as in "grand theory".


[DK: Thanks. Just fixed it.]
1.17.2009 3:00pm
gandolf:
David,

thank you for posting the article. I read it, and look forward to re-reading. I don't have the benefit of going back and examining all the 10th Circuit cases you reviewed but I'm sure your account of them is accurate.

First off I don't mind if you call their behavior a "disgrace to the rule of law" but lots of people will be offput by that. It seems way harsh. But that is just an observation; obviously you are at peace with it.

Another perspective I'd like to add is that I'm currently reading Posner's How Judges Think, and from that perspective your criticism of them looks like that of a "legalist" attacking these judges for not relying sufficiently on scholarly materials and syllogism to reach the doctrinally "correct" result, or at least employ the correct "legal reasoning" method.

That is not a criticism, but you give insufficient attention to a reason they may have acted this way: the supreme court itself was deliberately not addressing the question, and many people have remarked on this over the years. It was not only that the Court was happy to have these cases disposed of cursorily by lower courts-- they appeared to be happy to have virtually no discussion of the issue. There was no real Second Amendment "doctrine" to apply, and the Court was happy if none developed. The closest thing available to them as a "rule" from the Supreme Court may have been, "avoid this topic if you can." They were not disposed to hear these cases; and we all recall Burger's public denunciation of the individual-rights theory. A judge could be forgiven for saying "this may be bullshit, but the men upstairs are determined to have this amendment treated as a dead letter."

In other words, straightforward logical processes don't describe what the judges did, or their real motives, so appeals to "better" logical processes won't "improve" results.

Another factor that may have contributed to this, from a "legalist" perspective, is that cursory court opinions are often the result of weak inputs by counsel. All of these extensive secondary authorities you point to, like law review articles and congressional reports, were probably not cited to the court in the briefs by what you admit were usually underfunded litigants. Even a prestigious federal appeals court cannot (or will not) turn every claim raised before it into an opportunity to issue a 25-page "tour of the library" opinion, displaying arguments and theories from law professors that were not raised specifically by the parties. Garbage in, garbage out.

Finally, you may know this specific area of law better than most others, but my sense is that only in the mid-90s and beyond was there really a convincing critical mass of legal scholarship that made the individual-rights theory irrefutable, or close to irrefutable. So, if you are someone who thinks Heller was correct, what is better- a 10th Circuit decision from the 1980s based on incomplete scholarly research that gets reversed by an ill-informed Supreme Court, or a series of decisions batting down 2d Amdt claims that eventually are superseded by Heller?
1.17.2009 3:14pm
fortyninerdweet (mail):
Taking in the telling points raised by Gandoff, instinct tells me absent "weak input" the main reason the Seconds exercise in high school level mock trial quality decisions was simply wishful thinking - hoping the elephant in the room would just go away. Thanks for the post.
1.17.2009 3:27pm
Edward A. Hoffman (mail):
I think the tone of this passage is too didactic. Using the word "disgrace" once might have been okay (though not in my book), but five times is excessive. Saying that the cases "would not add up to a mediocre student Note in a secondary journal at an unaccredited law school" is also way over the line, and would have been even without the repeated comments about disgrace.

The passage reads more like venting than reasoned analysis -- indeed, it could easily have been an anonymous comment by one of the more agitated readers of this blog. Even though it contains a well-reasoned critique of the cases, the reasoning is overshadowed by the vitriol.

Such writing would be extreme even by the standards of an op-ed page, let alone a law review. Journal articles should have a more moderate tone. If you'll forgive me for saying so, "Even the lowliest of student Notes" would not go to such extremes.

Fwiw, I would say this even if I agreed passionately about your position. My critique is about style and not substance.
1.17.2009 3:29pm
Order of the Coif:
Hoffman wrote.
Saying that the cases "would not add up to a mediocre student Note in a secondary journal at an unaccredited law school" is also way over the line, and would have been even without the repeated comments about disgrace.


Actually, it is dead on accurate. The Eighth Circuit's efforts are no better. As social "scientists" would say result-oriented trash.

See Brannon Denning's classic article:
Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 Cumberland Law Review 961 (1996).
1.17.2009 3:40pm
Edward A. Hoffman (mail):
Order of the Coif wrote:
Actually, it is dead on accurate.
As I said, my comment was about style and not substance. Even perfectly accurate statements can be written in unacceptable ways.

Besides, I don't think any statement of opinion could qualify as "dead on accurate". It may be dead-on aligned with the reader's own opinion, or even the opinion of the vast majority of people, but that's not the same thing.
1.17.2009 3:44pm
Repeal 16-17 (mail):
The reason that the Tenth Amendment's Second Amendment cases are a disgrace is that they barely had any reasoning.


"Tenth Amendment's" should be "Ten Circuit's".


[DK: Thanks. Just fixed it.]

The Tenth Circuit's Second Amendment decisions are an example of mental laziness. The Tenth Circuit simply took as indisputable that the collective right interpretation of the Second Amendment was correct and so saw no need to explain what it perceived to be obvious.
1.17.2009 4:35pm
Repeal 16-17 (mail):
I had a similar brain lock regarding that sentence.

"Tenth Amendment's" should be "Tenth Circuit's".
1.17.2009 4:40pm
Bob Leibowitz (mail) (www):
Dave -- It may be vitriol, as commented earlier, but surely there are grades of vitriol. This qualifies as very high grade. Reminds me a little of the Jack Bauer testimony before the Senate committee.

The sharpest rapier, inserted with a deft touch, inspires no immediate pain. So, for both fun and effectiveness, I suggest you switch from a .50BMG to something a little more subtle; something that you and we will enjoy, their colleagues will become thoughtful about but that the targets themselves will never know was the cause of their fall from the halls of enlightened man.
1.17.2009 5:01pm
Daryl Herbert (www):
D'oh. Of course "view" is the wrong word.

It wouldn't be a very expansive "grand view" if it's locked up tighter than a closeted Republican representative in his gay prostitute's S&M torture dungeon.
1.17.2009 5:57pm
reader (mail):
The whole thing suffers from an unwarranted agressiveness that discredits the writer more than the target of his attacks. The 10th Circuit's militia-based interpretation of the Amendment may have been wrong. But what were they supposed to do -- ignore the Supreme Court's Miller decision? Even if they had wanted to challenge the Miller dicta, for much of the 25 year period you discuss, there really wasn't a well-developed competing scholarly vision of the Amendment for the Court of Appeals to latch on to. The scholarly opinion on which Heller relies began to seriously coalesce in the 1990s.

Your failure to incorporate these points into your scathing critique show a questionable grasp of how lower courts go about making decisions. And the vitriol apparent in your posted introduction shows you to be lacking any sense of proportion. Moderate your tone a bit, and perhaps people won't dismiss you as a crank.
1.17.2009 5:57pm
krs:
Maybe I should read the whole article, but the main thing that strikes me about the excerpt is that the tone seems gratuitously nasty (much like the other one criticizing Judge Wilkinson), and the bit about the student note at a secondary journal at an unaccredited school sounds like something from autoadmit.com--why not go the extra half-step and replace "unaccredited school" with "TTT"?

I'm not against making a point forcefully, and I think that, when it's taken too far, civility can turn into a form of cowardice. But 8 paragraphs to make the point that the Tenth Circuit's Second Amendment caselaw was something of a copout for lacking reason and failing to address contrary authorities... at the end it feels like a personal attack.

My 2 cents. Take it for what it's worth.
1.17.2009 6:37pm
Brett Bellmore:

But what were they supposed to do -- ignore the Supreme Court's Miller decision?


Of course not. Instead, they should have read it. Rather than taking part in the decades long game of "telephone" the circuits played with the Miller decision, each basing it's new rulings on other circuits' interpretations of Miller, rather than the actual decision.
1.17.2009 6:47pm
New Pseudonym:
I agree with a lot of the comments. This selection does not capture the "fact" that the Tenths began in the 1970s with what was at the time considered uncontroversial summary dismissals relying on the collective right, then failed to recognize an emerging body of scholarship, which began in the historical field rather than the legal field IIRC, that the collective right view lacked support. Then they ignored that some of the support of their coollective right view (again, in the historical field)proved fraudulent and the emerging contrary consensus. Your tone may be justified from the mid 1990s on, but perhaps not for the entire period.

Sounds a bit like "draft" letters to the editor that I have written but not mailed.
1.17.2009 7:11pm
remoine:
This selection does not capture the "fact" that the Tenths began in the 1970s with what was at the time considered uncontroversial summary dismissals relying on the collective right, then failed to recognize an emerging body of scholarship, which began in the historical field rather than the legal field IIRC, that the collective right view lacked support.


Indeed-- and speaking of mid-1990s scholarly work, how pleased would Professor Kopel have been if the Tenth had cited "scholarly" works such as Arming America to bat down Second Amendment arguments?

The tone of the article is scathing, and revels in 20/20 hindsight.
1.17.2009 7:45pm
Brett Bellmore:

uncontroversial summary dismissals


I must disagree: Those dismissals were never "uncontroversial" in any meaningful sense. Every one of them outraged huge numbers of people, and the legal theory they were based on, while it might have been very popular with a legal community which really, seriously disliked the 2nd amendment, has never, so far as I understand it, commanded anything approaching a majority of the public.

The legal community may, for a while, have forgotten what the 2nd amendment meant, but the public didn't.
1.17.2009 7:46pm
Can't find a good name:
On page 9 of the article, there is a reference to "... a man who has been statutorily declared by the Kansas state legislature to be a member of the Kansas state legislature ..." The second "legislature" should say "militia" instead.
1.17.2009 7:49pm
Can't find a good name:
Also on page 9: "Nicholas Johnson has set forth a Ninth Amendment for handguns (not for machine guns) which provides extensive evidence that handgun ownership for self-defense easily passes the various Supreme Court tests for unenumerated rights." That should probably say "... set forth a Ninth Amendment argument ..."
1.17.2009 7:50pm
Can't find a good name:
On page 53: "... a convicted felon who thought that Second Amendment guaranteed his absolute right to make manufacture unregistered explosives ..." Either "make" or "manufacture" should be there, but not both.
1.17.2009 8:06pm
J. Aldridge:
David says, "The reason that the Tenth Circuit's Second Amendment cases are a disgrace is that they barely had any reasoning." And Heller did? Nope! There was no reasoning in Heller, just lots of spin-and-twist with out-of-context excerpts with heavy dosages of biased assumptions.

Put Scalia's arguments in Heller under a microscope and Heller goes up in one big ball of flames (see here).

"[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." —Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

with nearly every paragraph.
1.17.2009 9:15pm
zippypinhead:
Dave, you have a solid legal analysis, but your draft is rather more strident in tone than is necessary. Some of the verbiage borders on insulting, which is generally a bad approach for anyone who's trying to actually influence others.

At bottom I don't think it will shock anyone to learn that the Tenth Circuit hasn't been leading the Second Amendment parade, because that Circuit traditionally tends not to lead many parades at all (riparian rights and public land use matters being the only possible exceptions that come to this pinhead's mind).
1.17.2009 9:31pm
Leif Rakur (mail):
It is surely preposterous to think that the framers of the Second Amendment would have intended to confer a right to keep and bear arms on any individual who was not "capable of bearing arms" and who was therefore not liable for militia service.

When the Second Amendment was written, Americans who were eligible for militia service were said to be "capable of bearing arms" or "able to bear arms." That was the common language of the time.

To be considered capable of bearing arms you had to meet militia qualifications, both physically and by age. If you weren't within the age limits or if you weren't able- bodied, you might well be able to carry a duck gun or to carry arms for self-defense, but you wouldn't have been counted as part of that body of the people capable of bearing arms.
1.17.2009 11:14pm
J. Aldridge:
Not only that, Leif Rakur, but also refusal to take the "oath to bear arms" always resulted in denial of citizenship in naturalization court prior to 1946! If you take Heller seriously, these immigrants were required by oath to go out and purchase a firearm! LOL
1.17.2009 11:44pm
Dilan Esper (mail) (www):
I actually agree with Kopel's point. The issue isn't following the collective rights position-- those who think that courts of appeal should have been going out on a limb and reading Miller narrowly, when the rest of the courts of appeal were basically agreed about the collective rights position have a strange and stilted understanding of legal precedent and how the courts function.

But that doesn't excuse the courts from offering cogent reasons for their decisions. Every litigant is owed an explanation for a ruling against him or her.
1.18.2009 2:58am
Brett Bellmore:
"reading Miller narrowly"? No, but a reasonably accurate reading of Miller would have been nice.

Circuit courts are not bound by other circuits' precedents, they're bound by the Supreme court's precedents. Why is it unreasonable for them to notice when those other circuits' precedents disagree with the Supreme court ruling they're supposedly based on? Especially when defendants' counsel is pointing it out?
1.18.2009 7:39am
ReaderY:
I honestly don't think this type of post adds any value, and it may even detract from the VC's reputation as a place where issues are discussed politely.

Courts routinely summarily affirm matters where they believe there is clear precedent, even in the face of social disagreement. They've summarily affirmed sodomy laws, even though Bowers was 5-4 and Lawrence was 5-4 the other way. They summarily affirmed affirmative action cases right up to the Supreme Court's reversal of its former support in the 1980s. They've summarily affirmed anti-drug laws, even though a few states and court have dissented. They summarily affirmed abortion cases right up to Roe v. Wade. And so on.

This is reasonable. There's simply no need (at least the general public has no need, law professors' paycheck needs may take them in a different direction) to endlessly regurgitate matters that have already been clearly decided, which the panel doesn't even have the authority to revisit, which can only be addressed at a level further up, and which are being presented to lower courts in the first place essentially for presentation purposes.

I frankly think court opinions are much longer than they need to be and should decline to waste trees and resources regurgitating clearly decided matters more often, not less. THis is so regardless of what I think of the legal merits of particular issues and decisions.

The status of firearms was clearly decided a particular way in the 10th Circuit in the decades prior to Heller. That was simply the state of the law in that circuit. Panel judges who recognized this are to be commended for their brevity and their parsimony with the public's resources, including its attention and their own time. The fact that the Supreme Court ultimately reversed this circuit precedent doesn't change this in the least.
1.18.2009 10:14am
ReaderY:
Should have said "for preservation purposes" above
1.18.2009 10:16am
http://volokh.com/?exclude=davidb:

The reason that the Tenth Circuit's Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.

I am no expert on the Second Amendment. But I edit a lot of legal writing. A lot. My opinion, fwiw: this level of moral outrage/nastiness detracts significantly from the point you are trying to make, makes you look like a crank, and is similar to something you might see from... from... a mediocre associate-written brief in a dogbite case handled by a second-tier law firm.

Okay, just kidding about that last part, but seriously -- you need to dial this WAY back.
1.18.2009 10:30am
co-9:
After reading that article, I've scratched one name off my "law profs to approach to be co-counsel in important 10th Circuit cases" list.
1.18.2009 12:26pm
Smokey Behr (mail):
I wonder if the Tenth Circuit is similar to the Ninth Circuit in that the court is centered in a rather Liberal area, the Justices run in similar social circles where everyone agrees with their Liberal views, and they are not really challenged to think in a different way about things.

The Nordyke oral arguments were on Thursday in the Ninth, and this case is the best hope for 2A incorporation. The appellees were literally laughed at when it was pointed out that they were trying to have a gun show without guns.
1.18.2009 12:38pm
Bart (mail):
Mr. Kopel:

Thank you very much for your survey of 10th Circuit Second Amendment cases and the effect of Heller on each. I am a criminal defense attorney practicing in Woodland Park, CO who has used Heller to obtain dismissals or deferrals in two cases and anticipates having to argue the effect of 10th Circuit precedent in the near future. Your survey should save me a great deal of research.
1.18.2009 1:05pm
Feldspar:
If the court of appeals is satisfied with how the District Court approached the issue, they should not go on and on about it.

As to the argumentation in the article, it is cartoonish in its rhetoric and is almost laughable, except I don't think a joke was intended. The article does not even amount to the heights of a "mediocre student Note."
1.18.2009 1:08pm
Bart (mail):
J. Aldridge:

"[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." —Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

Justice Scalia is correct. The original Bill of Rights limited only the Federal Government. The issue is whether the Second Amendment is incorporated along with nearly every other right in that bill against the States.
1.18.2009 1:13pm
J. Aldridge:
Bart said: "Justice Scalia is correct. The original Bill of Rights limited only the Federal Government."

Last I looked the original Bill of Rights was still very original.

"The adoption of this proposed [fourteenth] amendment will take from the States no rights that belong to the the States." Bingham

"Do gentlemen say that by so legislating [enforcing the Fourteenth Amendment] we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existence." Bingham

"The recent [fourteenth] amendment in no way can be construed by any court of the land as invading the rights of the states as existed since the beginning of our national existence." Bigham

"The care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country." Bingham

"It [fourteenth amendment] takes from no State any right which hitherto pertained to the several States of the Union." Bingham

"The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution." Bingham

"The clause of the Fourteenth Amendment, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two." Bingham
1.18.2009 2:11pm
Hauk (mail):
I wonder if the Tenth Circuit is similar to the Ninth Circuit in that the court is centered in a rather Liberal area, the Justices run in similar social circles where everyone agrees with their Liberal views, and they are not really challenged to think in a different way about things.

The Tenth includes Oklahoma, Kansas, Wyoming, Utah, Colorado, and New Mexico. Not exactly bastions of liberalism, particularly the first four.
1.18.2009 7:40pm
Dilan Esper (mail) (www):
Circuit courts are not bound by other circuits' precedents, they're bound by the Supreme court's precedents.

Brett, go to law school, take a couple of courses in jurisprudence, maybe clerk for a judge, and then get back to us about courts of appeal ignoring the decisions of their sister circuits.

And also (and this goes for a lot of people), stop pretending that the Heller reading of Miller was the only plausible reading. Miller was a poorly written and oblique decision; it was certainly plausible for lower courts to decide to leave it to the Supreme Court to determine whether there was an individual right to keep and bear arms.
1.18.2009 9:32pm
whit:

And also (and this goes for a lot of people), stop pretending that the Heller reading of Miller was the only plausible reading. Miller was a poorly written and oblique decision; it was certainly plausible for lower courts to decide to leave it to the Supreme Court to determine whether there was an individual right to keep and bear arms.



right. i mean "the people" clearly doesn't reference INDIVIDUALS (rolls eyes).

apparently, the 2nd amendment needs more penumbras and emanations in order for people to realize what the "plausible" reading is!
1.18.2009 11:15pm
Leif Rakur (mail):
In this version of the Second Amendment idea, supported by Alexander Hamilton and John Jay in 1788, how do you define the phrase "the people"? "bear arms"? "bearing arms"?:

"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."
1.19.2009 1:51pm
George Mocsary:
You mention student Notes. My Note for the Fordham Law Review, George A. Mocsary, Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113 (2008), available at http://ssrn.com/abstract=1102860, is a good example of 63 dense pages which still do not touch on every point supporting the individual nature of the Second Amendment's guarantee.

The Note approaches the issue by asking how many obstacles each side must explain away and examining the relative strength of those explanations. (The main argument begins on p2154, with the previous parts being thorough background.) Under this analysis, the collective right view utterly fails. No doubt, the inability of the Tenth Circuit to "explain away" the overwhelming support for an individual right is one of the reasons for its refusal to address its cases in an intellectually honest manner.
1.19.2009 7:01pm
Dilan Esper (mail) (www):
whit, again, you are a cop, not a lawyer. There are good reasons (which will be covered in Jurisprudence 1 in law school) why lower federal courts look at legal precedents to interpret even seemingly "clear" texts.

This is just an area where if you learn legal theory from conservative talk radio, you end up woefully uninformed about how the law works. It was perfectly reasonable for courts of appeal not to rock the boat when the hopelessly vague Miller case was the prevailing legal opinion and the other courts of appeal basically agreed as to what it meant. This is how the American (and English common law) legal system works. If you don't like it, move somewhere else.
1.20.2009 12:26am

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