"Justice who wrote gun decision is a gun dealer"

[Kermit Roosevelt]

Is the question "should he recuse?" or "would we expect opponents to  
complain if he didn't?" It seems to me this is just ordinary politics,  
and we can  say it's neither unexpected nor inappropriate for people  
to make criticisms that they think will advance their political  
agendas. Isn't that more or less what you said about the "Obama pals  
around with terrorists" charge? Or is your point that that these  
criticisms are an order of magnitude worse? And would you react the  
same way to crititicism of the abortion-providing judge?

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775

On Oct 11, 2009, at 12:45 AM, "Volokh, Eugene" <VOLOKH at law.ucla.edu>  
wrote:

>
>    An excellent hypothetical, thanks!  So a state supreme court  
> Justice with an M.D. performs a few abortions on the year on the  
> side.  (We have to make it for a modest amount of money, since that  
> makes it more parallel to the firearms licensees.)  All of the  
> abortions have been on 18-year-olds and above.  The right to  
> abortion is settled.  He is now called on to decide whether minor  
> girls should have a right to have an abortion without parental  
> notification, in very rare circumstances beyond those provided by  
> settled law.  He concludes that this is so.  As a result, the pool  
> of women who might seek abortions, and who might therefore employ  
> him to perform abortions, grows by a tiny fraction; his income might  
> therefore grow by a tiny fraction, though it's likely that he'll  
> never perform such an abortion in the future.  Should he have  
> recused himself from a case deciding, not his own rights, but the  
> girls' rights?
>
>    Eugene
>
>> -----Original Message-----
>> From: Janet Alexander [mailto:jca at stanford.edu]
>> Sent: Saturday, October 10, 2009 6:16 PM
>> To: Volokh, Eugene; conlawprof at lists.ucla.edu
>> Subject: Re: "Justice who wrote gun decision is a gun dealer"
>>
>> How about substituting "abortion provider" for "gun dealer" and make
>> it a case about a limitation on access to abortions?  Let's even say
>> that the judge is a volunteer "abortion provider" so makes no money
>> from the business.
>>
>> At 05:52 PM 10/10/2009, Volokh, Eugene wrote:
>>>        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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> _______________________________________________
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>
> Please note that messages sent to this large list cannot be viewed  
> as private.  Anyone can subscribe to the list and read messages that  
> are posted; people can read the Web archives; and list members can  
> (rightly or wrongly) forward the messages to others.