"Justice who wrote gun decision is a gun dealer"

Volokh, Eugene VOLOKH at law.ucla.edu
Sat Oct 10 17:52:13 PDT 2009


	I realize this is a question chiefly about legal ethics, but it arises in a constitutional rights case, so I thought I'd ask it here:  Are the criticisms mentioned in the article below at all sensible?  (For more on the case, see http://www.volokh.com/posts/1251496843.shtml .)

	I would think they're not:  Certainly federally licensed gun dealers' incomes would be almost entirely unaffected by decisions that increase, by a tiny amount, the number of lawful gun owners.  (The decision didn't say that all convicted felons nonetheless have a state constitutional right to own a gun, but was focused on one felon who had had a long-ago conviction and an exemplary record since; and the set of felons who were barred from owning guns by state law but nonetheless were allowed to own guns under federal law, because their civil rights had been restored, was also very small.)  And beyond that, surely we wouldn't condemn a judge for deciding (say) in favor of greater protection of obscenity just because it slightly increases the number of magazines that could be carried in a convenience store he owns -- even if that store already sells some Playboys (which aren't the subject of the case).  But maybe I'm missing something.  Any thoughts on this?

	Eugene

 
-----Original Message-----
From: firearmsregprof-bounces at lists.ucla.edu [mailto:firearmsregprof-bounces at lists.ucla.edu] On Behalf Of Henry E Schaffer
Sent: Saturday, October 10, 2009 2:17 PM
To: firearmsregprof at lists.ucla.edu
Subject: "Justice who wrote gun decision is a gun dealer"

http://www.newsobserver.com/news/local_state/story/134741.html
OCT 10, 2009
RALEIGH -- The N.C. Supreme Court attracted national attention a few
weeks ago as the first court in the nation to rule that a convicted
felon has a right to own a gun.

What drew little notice is that Edward Thomas Brady, the justice who
wrote the 5-2 decision in August, is a federally licensed gun dealer and
gun manufacturer who has collected more than $5,000 a year from gun
sales since 2007.

Legal experts split over whether Brady was properly bringing his
perspective to the case or should have recused himself from the
decision.

"I don't think gun dealers should be deciding the constitutionality of
gun laws," said Dennis Henigan, vice president for law and policy at the
pro-gun control Brady Center to Prevent Gun Violence in Washington.

Gene Nichol, a law professor at UNC-Chapel Hill, described the ruling by
the justices as "the most aggressive gun rights decision" in the
country. "Then you read that the highly-activist opinion is written by a
gun dealer and manufacturer," he said. "It sure smells."

Other legal scholars, however, countered that the decision was narrowly
written to resolve that particular case and likely wouldn't apply to
many others.

Two former state chief justices, one a Republican and the other a
Democrat, said they saw no need for Brady to recuse himself.

"It seems to me that there's no conflict nor even arguably the
appearance of a conflict," said Burley Mitchell, a Democrat and chief
justice from 1995 to 1999. "I've got a driver's license, but I regularly
ruled on cases involving automobiles and driver's rights. If a judge
starts recusing over connections that remote, you'll have a judiciary
that can dodge every difficult case."

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