Blog

For those of you in the D.C. Libertarian community, you will know that there are two Ilyas.

Ilya Shapiro, a Senior Fellow of Constitutional Studies at the Cato Institute, and Ilya Somin, a Professor at George Mason School of Law. Both are Libertarians. Both are Russian. Both have the same last initial. They often get confused. But they are nothing alike.

To resolve this name-game between these two brains, I proposed a trivia battle. Both parties agreed. I provided each party with a copy of Judge Danny Boggs’s (Court of Appeals for the Sixth Circuit) Trivia Questionnaire . For those unfamiliar with Judge Boggs’s Trivia Questionnaire, check out this story from Underneath Their Robes.

I graded the quizzes, and in this JoshCast, I announce the results with both parties on the line. Take a listen. Hilarity ensues.

But, before you listen, a quick poll: Who do you think won?

[polldaddy poll=2295401]

Here is the JoshCast:

[podcast format=”video”]https://joshblackman.com/podcasts/battle-of-ilyas.m4a[/podcast]

Download Audio File

I commend you listen to the JoshCast in its entirety, but if you must, fast forward to 8:30 to hear the winner, or click here for the answer.

If you like these JoshCasts, please Subscribe to my iTunes Feed

I am considering making these trivia battles a weekly program. If you are interested in strutting your stuff, and showing your skills, contact me 🙂

One of my favorite exercises in Legislation Class was interpreting a statute that reads “No Vehicles in the Park.” What is a vehicle? How to define it? If the sign was erected in the 1800s, would the sign prohibit automobiles or just horse-carriages? Ah, Law School.

Anyway, the Georgia Supreme Court ruled that a mower is most certainly not a vehicle. From AP (H/T How Appealing):

A riding lawn mower may have four wheels, a powerful engine and can cost as much as a used car. If it’s stolen, however, the Georgia Supreme Court concluded Monday that it’s not a motor vehicle.

Public defender Michael McCarthy told the justices that while Harris should still be charged with theft, he shouldn’t be punished as if he had stolen a car. A riding mower is many things, a modern mechanical marvel among them, but McCarthy said it’s not a motor vehicle under state law.

Prosecutors countered that the state defines a “motor vehicle” as a “self-propelled” device, and there’s no doubt a riding mower meets that standard.

The state’s top court agreed, concluding in an 18-page decision that the sentence should be overturned because the purpose of a riding mower is to cut grass, not transport people.

“To be sure, a riding lawn mower is capable of transporting people or property and of driving on the street for short stretches,” Justice David Nahmias wrote in the opinion. “But that is not what the machine is designed for or how it is normally used.”

But, like any good law school class, there was some disagreement:

In a dissent, Justice Harold Melton argued that Georgia lawmakers specifically defined “motor vehicle” broadly enough to include riding mowers. It warned that the ruling “has interpreted the statute in a manner that creates conflict and leads to an absurd result.”

The full opinion from the Georgia Supreme Court is available here.

Dave Kopel, Research Director of the Independence Institute and frequent blogger of the Volokh Conspiracy took a few minutes to chat with me about the amicus brief he filed in McDonald v. Chicago. Dave presents some fascinating empirical data about the effects of handgun bans on crime, and presents an interesting argument how Meyer v. Nebraska compels striking down the Chicago ban.

[podcast format=”video”]https://joshblackman.com/podcasts/joshcasts-kopel.m4a[/podcast]

Download Audio File
Subscribe to my iTunes Feed

I just finished reading Clark Neily and IJ’s fantastic amicus brief for McDonald.

There’s a lot to praise, but I would like to focus on Section II which begins, “The Fourteenth Amendment Does Not “Incorporate” The Second Amendment—It Protects The Pre-Existing Right To Arms From State And Local Governments.”

That understanding was confirmed in District of Columbia v. Heller,7 which noted that the Second Amendment did not grant but instead “codified a preexisting right” to keep and bear arms. The same is true of the Fourteenth Amendment right to arms: It is not in any way “dependent upon” the Second Amendment for its existence. Instead, the Fourteenth Amendment protects from state interference the same pre-existing right to arms that the Second Amendment “codified” against the federal government. Thus, in seeking to understand the Fourteenth Amendment right to arms, one looks not to the Second Amendment, but to the exact same right noted in Cruikshank and Heller—as it was understood by the Reconstruction-era ratifying public.

While the doctrine of substantive due process has a more substantial pedigree than most of its critics recognize (tracing its roots to “law of the land” provisions that date back to the Magna Carta and are found in many state constitutions today8), it is nevertheless perfectly clear that substantive due process is doing a great deal of work today that the Privileges or Immunities Clause was meant to do. Among the results of that mistake has been to expose the Court’s individual rights jurisprudence to substantial criticism, particularly from people who— unlike those who wrote and ratified the Fourteenth Amendment—would prefer a more limited role for the federal courts in protecting individual liberty.

That redundancy notwithstanding, precision and fidelity to constitutional text require a careful reexamination of the Fourteenth Amendment in order to determine which provision most plausibly protects the “pre-existing” right to keep and bear arms. A candid review of the relevant history leaves no room for doubt—it is the Privileges or Immunities Clause.

Bravo Clark!

Ilya Shapiro and I make a very similar point in our forthcoming article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment.  Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.

What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King,we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.

I hope the Court takes notice of these arguments.

Good thing Chief Justice Roberts picked the correct sport. From ESPN:

Refs favor the home team, the academics say. They’re big on “make-up” calls. They make more calls against teams in the lead, and the discrepancy grows if the game is on national TV.

The professors studied 365 college games during the 2004-05 season and found that refs had a terrific knack for keeping the foul count even, regardless of which team was more aggressive.

Here are some of the statistics:

• The probability of a foul being called on the visiting team was 7 percent higher than on the home team.

• When the home team is leading, the probability of the next foul being called on them was about 6.3 percentage points higher than when the home team was trailing. The professors also cited an earlier study that concluded there were more calls against teams ahead in games on national TV versus those ahead in locally televised games. Calling fouls against the leading team tends to keep games closer, the studies said.

• The bigger the difference in fouls between the two teams playing, the more likely it was that the next call would come against the team with fewer fouls. When the home team had five or more fouls than the visiting team, there was a 69 percent chance the visiting team would be whistled for the next foul.

So much for calling balls and strikes.