McDonald v. Chicago

[Miller, Darrell (mille2di)]

What I will be watching is whether the Court will be honest about the complexity of arms and/or self-defense during Reconstruction.   For every freedman that says he's being disarmed by an anti-Union state militia, there's an ex-Confederate saying the same about a pro-Union state militia. 

________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar [stevenjamar at gmail.com]
Sent: Monday, March 01, 2010 6:29 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: McDonald v. Chicago

I think Heller was decided within bounds, but it surely was weird in lots of ways.

The Court, as others have done and do, uses history in an instrumental way.  It is not trying to really discover what was, but what was from a certain perspective.  This is the way history has always been done.  There is no One True History out there.  FWIW, I think Stevens had the better of the history, but even if he didn't, remember his was being presented in the context of a corrective to the majority overstatements and abuses of history.

It would have been much better to have history, particularly since it is unclear and contested, play a much smaller role and decided it straight up on policy without the disingenuous appeal to non-existent or thin or manufactured or highly selective support in the historical record.

But some of the justices seem unwilling to recognize that that is what they are doing.

The caution from Brown that sometimes history isn't of much help has, unfortunately been forgotten or rejected by a number of justices.

Steve

On Mar 1, 2010, at 5:40 PM, Raymond Kessler wrote:

Looks like some folks have  still not gotten  over the Heller decision.  Stevens’ dissent in Heller would be a D-.

Ray Kessler
Prof. of  Criminal Justice
Sul Ross State Univ.


From: Paul Finkelman [mailto:paul.finkelman at yahoo.com]
Sent: Monday, March 01, 2010 4:37 PM
To: 'Calvin Johnson'; conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>; Raymond Kessler
Subject: RE: McDonald v. Chicago

The fact that the Court may have rejected these arguments may only indicate that the originalism of the majority is a useful ploy when it gets the majority where it wants to go and it ignored when it does not get the majority where it wants to go.  The Justices are not, in the end, really very much interested in history.  The Heller opinion would be a C- or worse in a history course.

----
Paul Finkelman, Ph. D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>

www.paulfinkelman.com<http://www.paulfinkelman.com>

--- On Mon, 3/1/10, Raymond Kessler <rkessler at sulross.edu<mailto:rkessler at sulross.edu>> wrote:

From: Raymond Kessler <rkessler at sulross.edu<mailto:rkessler at sulross.edu>>
Subject: RE: McDonald v. Chicago
To: "'Calvin Johnson'" <CJohnson at law.utexas.edu<mailto:CJohnson at law.utexas.edu>>, conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Date: Monday, March 1, 2010, 4:14 PM
You’re nearly two years behind.  The points your are making about the militia were rejected in D.C. v. Heller (2008).  Many of those issues were settled in the militia clauses.

Ray Kessler
Prof. of  Criminal Justice
Sul Ross State Univ.






--
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."


Martin Luther King, Jr., (1963)