Does an American citizen have a Constitutional right to own a gun

Does an American citizen have a Constitutional right to own a gun

The right of the people? A well-regulated militia? What do these mean?

What does the Second Amendment say? Is gun ownership a right for all Americans? Or just for a small militia? Eugene Volokh, Professor of Law at UCLA, explains what the Founding Fathers intended.

President Trump - NRA

Does an American citizen have a Constitutional right to own a gun?

Here’s what the Second Amendment says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Now, it once seemed to me like that language only protected state militias and not individuals. Indeed, this is the view held by the four dissenting Supreme Court justices in the 2008 case of District of Columbia versus Heller, a landmark case dealing with gun ownership. Support this show - Join the NRA Today

But the more research I did, the more I came to realize that my initial view was mistaken and that the Founders were, in fact, securing an individual right. The five justices who voted to affirm the right to own a gun in DC versus Heller had, indeed, made the correct decision.

Let’s look at the amendment one more time.

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

We first need to focus on the phrase “the right of the people.” Note that the people are the only ones whose right is secured here, not the militia or a state government. This phrase “the right of the people” comes up a few times in the Constitution. For example, the First Amendment refers to “The right of the people peaceably to assemble, and to petition the Government.” And the Fourth Amendment secures “The right of the people to be secure?against unreasonable searches and seizures.”

Why, then, if the authors of the Constitution felt so strongly about “the right of the people” to own guns, did they include language about “a well-regulated militia”?

These opening words of the amendment might be called a “justification clause.” Such clauses are used to help explain why a right is being secured. But it’s the operative clause that explains what right is being secured. In this case, the right of the people to keep and bear arms.

And what was the word ‘militia’ understood to mean at the time?

Well, the Militia Act of 1792 defined “militia” to mean all white males 18 to 45. Today, of course, “militia” would include women and people of all races, but it was clearly not a reference to a small, National Guard-type group.

And what about the part of the amendment that says a militia is necessary “to the security of a free State”? What, the opponents of personal gun ownership ask, does a personal right of gun ownership have to do with that?

Again, historical context is key. In the 1790s, the phrase “free State” wasn’t used to mean an individual state like New York or Rhode Island. Rather, it meant what we’d call today a “free country”?a nation free of despotism. A “free State” is what the Framers wanted America to be. They saw an armed citizenry as, in part, a hedge against tyranny. Citizens who own weapons can protect themselves, prevent tyrants from seizing power, and protect the nation from foreign enemies.

This does not mean, though, that this right is unlimited. Free speech, for example, has long been subject to some narrow and reasonable regulations. But severe restrictions on owning a gun, like severe restrictions on free speech, would violate the Second Amendment as the Founders understood it.
Give Old Guard Audio a Listen, you will be glad you did!

Radical Islamic Immigrants – Refugees turned Sweden into the RAPE CAPITAL OF THE WORLD – President Donald Trump was right!! Again!!

Radical Islamic Immigrants – Refugees turned Sweden into the RAPE CAPITAL OF THE WORLD – President Donald Trump was right! Again!

Rape and violence has exploded across Sweden due it’s immigration policies. Listen to see what Sweden has done to itself.

By: Ami Horowitz

 Islamic Refugees take over Sweden

 

Ami Horowitz is an American media personality who is co-producer, co-director, co-writer, and star of the 2012 documentary U.N. Me, a critical examination of the United Nations. As of 2016, he lives in New York City.

Horowitz came to prominence in February 2017 when President Donald Trump appeared to suggest that there had been an increase of violence in Sweden committed by refugees, on the basis of a February 17, 2017 Horowitz interview on Fox News.

0-02

sweet home two hot blondes dead Vikings

0-07

and the swedish chef in order to put and

0-10

report now add another thing this list

0-13

Sweden is now the proud owner of the

0-15

title the rape capital of Europe

0-30

Sweden has always had a reputation of

0-33

being a harmonious and liberal society

0-36

this image has been shattered as rapist

0-38

skyrocketed over the past five years at

0-42

the same time

0-43

Sweden has been going through a

0-44

revolutionary demographic shift that has

0-47

seen the country taking more refugees

0-49

from Islamic countries than any Western

0-52

nation in the world this immigration has

0-54

led to culture clashes and to enclave of

0-57

self-contained societies across Sweden

0-59

this is Annika Henry frosting

1-02

she’s the sweetest journalist who has

1-04

extensively covered the Middle Eastern

1-05

migration into sweet what we have is

1-08

first of all a very a a Swedish culture

1-11

and then we bringing less like last year

1-14

a hundred and ninety thousand people

1-16

that come from a very different culture

1-18

a culture that is in liberal that has

1-21

radically different views on women on

1-24

sexuality and gender on all these things

1-26

there’s an explosion

1-28

yeah you if we will be clashes this is

1-31

rick be a leafy northern suburb of

1-34

Stockholm also a completely Islamic area

1-37

the police have said is a complete no-go

1-39

for them and for journalists here a

1-43

60-minute screw from Australia’s

1-45

attacked while doing the story on recall

1-47

in order to common area the prosper you

1-52

have to adapt to that culture and that

1-55

what we’re doing in Europe is the

1-57

complete opposite they are saying how

1-59

can we adapt to you do you think that

2-01

swim has a responsibility to adapt to

2-04

the immigrants culture coming in let the

2-06

material should a woman who they come

2-08

here address you know modestly you know

2-10

with pants and sleeves is that important

2-13

it is our custom if you come to think

2-17

it’d be obviously every sweet said this

2-21

code you know my God’s with this is not

2-23

for me

2-24

sometimes I said we go to link to this

2-26

care right it’s good the dangerous here

2-28

sometimes sometimes yeah we found out

2-31

exactly how dangerous when while we were

2-34

setting up a shoot at a neighboring

2-35

location we were approached by five men

2-38

and told to leave while my crew took off

2-40

I state to simply ask why we had to

2-43

leave because i was still wired we have

2-46

the sound of what happened next

2-48

how come into the problem to the film

2-50

here I don’t want to be Fenway I never

2-52

why what’s the what’s the way you look I

2-54

just a long one no yy-you want my life

2-58

about 50 mg I’m not doing anything

3-01

look show me what you can let go me what

3-03

you got on later you find that coffee I

3-06

don’t I was not the first person

3-21

assaulted by gangs of immigrants nor

3-23

will i be the last but women are taking

3-26

the brunt of the explosion of violence

3-28

across sweet when I went to a police

3-30

station I noticed that the vast majority

3-32

that people waiting to report a crime or

3-35

women later the police officer who i met

3-37

with told me that most were there to

3-39

report reap these attacks are happening

3-44

across suite including a rash of rapes

3-47

and music festivals over the past two

3-50

years dozens of young women some as

3-52

young as 12 were raped these festivals

3-54

across sweet by hundreds of young

3-56

immigrants they use the tactic where

3-59

dozens of men surround one or more girls

4-01

in circles while the men the inner

4-03

circle sexually attacked their victims

4-05

the outer circle distract and keeps out

4-07

anyone who would stop it

4-09

the attacks have become so common that

4-11

some bands most notably Mumford & Sons

4-14

refused to play in suite has happened

4-17

multiple times

4-18

import multiple victims then the issue

4-20

is that when it is reported this was

4-23

widely known by the people who were

4-24

there the police that was on the scene

4-26

but then it was they put the lid on it

4-29

so we recovered they covered it up so we

4-32

didn’t learn about this until much much

4-34

later while the police have told me that

4-36

the majority of the people that they

4-38

arrest for rape or from Islamic

4-39

backgrounds bra the official keeper of

4-42

Swedish crime statistics curiously

4-45

dropped the background of those arrested

4-47

from the official statistics the

4-49

government has failed to recognize that

4-51

it’s made a huge mistake and the the

4-53

European Union has failed to recognize

4-56

that it’s made a huge mistake when we

4-57

have this free movement and the movement

4-59

of course is flowing toward the country

5-02

with the most generous social benefit

5-04

system the type of benefits the

5-06

immigrants receive in Sweden or

5-07

significant and are all encompassing and

5-10

include housing food education and

5-13

additional cash the government give

5-15

enough to to the immigration even

5-18

good work yeah yeah life is good or

5-20

better than keeping the house

5-28

school always will have a facebook while

5-32

the staggering increasing rape has made

5-34

some news

5-35

this phenomenon has been coupled with a

5-37

shocking and less widely reported

5-39

increase in violent crime in general

5-41

over the past couple of years several

5-43

dangerous immigrant riots have broken

5-45

out and shootings across Sweden have

5-47

increased sharply undergo rasen and

5-50

Jacob extra our veteran and decorated

5-53

policeman with decades of experience in

5-55

are tasked with policing within the

5-57

immigrant community has there been an

6-00

increase in violence and crime here in

6-03

sweet more violence and order violence

6-06

with guns and whatever weapons are you

6-10

guys seeing on the streets you can see

6-12

your collection calls hand grenades from

6-16

the east dance and dance everything you

6-20

can find in Afghanistan to find here

6-22

doesn’t sweden have very strict gun laws

6-24

for sure you know where and we get all

6-28

of them get new laws about counts

6-30

tighten up more and

6-35

I think it’s I think she’s good but you

6-37

know did the device increase anyway this

6-40

is a former police station which had to

6-43

be moved a couple of years ago and the

6-45

police will tell you that it simply

6-47

became too unsafe for them to have a

6-49

full-time presence here

6-51

this man has been playing the accordion

6-53

for several years trying to bring some

6-55

musical cheer to December yet he has

6-58

faced numerous attacks my music movie

7-02

other people

7-03

boot Polly by the please you need you

7-09

need the police here

7-09

yeah the police they go back the policy

7-12

you would you go as far as to say that

7-14

these no-go areas are essentially states

7-17

within the state

7-18

yeah most of the no-go areas like that

7-21

other areas where there if you’re

7-23

pursuing somebody will simply stop and

7-26

not pursue that once they get into this

7-28

no go area you go if the place is

7-31

chasing a another car from some kind of

7-36

crime if they reached what we call know

7-39

where the police wouldn’t go after you

7-41

see the violence really spreading across

7-43

wind into the city’s at least one or two

7-46

times a week ago and let’s say five

7-50

years ago how often

7-52

three times here really the increase in

7-58

this game is kind of crimes exponential

7-59

I think record a quart of guard within

8-03

the expected to be so so much so much

8-07

increase do you think that deliver

8-09

attempt to cover up the second times

8-11

rather than that they they don’t want to

8-18

seem racist is there sort of sensitivity

8-23

and more people scared that if you

8-25

identify as communities type of crimes

8-28

should be labeled a racist of course I

8-30

think this is this issue’s make people

8-33

nervous all over the world not only even

8-36

sweeter

8-37

let’s make me nervous as well what if

8-40

we’re talking about and you will be

8-42

called reason now this is you know race

8-44

car is very hard to 22

8-48

to deal with you know of course sure you

8-51

feel blonde like me and now to add these

8-54

words sweetness had dozens of people go

8-58

to fight for Isis and they’re starting

9-00

to come back

9-01

sweet has had his first islamic

9-04

terrorist attack

9-08

do you think the sexual assault problem

9-10

is an Islamic problem or whatever and I

9-12

think it’s a general problem among among

9-17

men

9-17

yeah the problem is in like this culture

9-22

of that culture the problem is

9-24

male culture i don’t think the

9-26

immigrants the problem no it’s not like

9-28

that’s just like a tiny tiny bit of the

9-31

problem and like when that happened it

9-34

happens like it’s because we didn’t like

9-36

Rick bring them in the right way and I

9-40

don’t see that connection at all i don’t

9-42

i would very much like to see the

9-44

evidence of such a connection your

9-46

stinking it’s almost racist to make that

9-48

connection

9-48

yes i think so is there a point we think

9-51

that sweet of them too much to bring

9-54

people into thinking now there is no too

9-56

much in helping people that is their

9-57

limit you think to how many immigrants

9-59

Sweden can take know

 

Give Old Guard Audio a Listen, you will be glad you did!

OBAMA SHADOW GOVERNMENT – EXPOSED

      No Comments on OBAMA SHADOW GOVERNMENT – EXPOSED

OBAMA SHADOW GOVERNMENT – EXPOSED

Former President Barack Hussein Obama organizing activist groups.

 

<- Fox News ->

Lou Dobbs interview with Paul Sperry Obama linked Activist Training

From the New York Post -> An Obama-tied activist group training tens of thousands of agitators to protest President Trump’s policies plans to hit Republican lawmakers supporting those policies even harder this week, when they return home for the congressional recess and hold town hall meetings and other functions.

Organizing for Action, a group founded by former President Barack Obama and featured prominently on his new post-presidency website, is distributing a training manual to anti-Trump activists that advises them to bully GOP lawmakers into backing off support for repealing ObamaCare, curbing immigration from high-risk Islamic nations and building a border wall.

In a new Facebook post, OFA calls on activists to mobilize against Republicans from now until Feb. 26, when “representatives are going to be in their home districts.”

Machine transcript

0-00

well joining me now Paul Sperry New York

0-02

Post columnist author of the great

0-03

american bank robbery and he is riding

0-06

on what is the resistance the shadow

0-09

government being formed by barack obama

0-12

and first of all thank you very much and

0-15

I my congratulations on outstanding

0-17

reporting I I wonder to what degree the

0-22

National liberal media will even pay an

0-25

ounce of attention will they have the

0-27

courage the principal to report on the

0-30

things that you and I are talking about

0-31

here tonight

0-33

of course not i mean you gotta Obama

0-35

friendly media and they’re they’re going

0-37

to try and cover this up and keep it on

0-39

the Qt as long as they can so that Obama

0-42

can get this like I was calling it in

0-44

the column but a shadow government build

0-46

this up I I don’t think Republicans know

0-49

what they’re up against here he’s

0-50

quietly building the shadow opposition

0-53

government to sabotage Trump and

0-56

Republicans as well in their policies

0-58

while at the same time saving his his

1-00

own legacy and he’s doing all this

1-03

through a radical Olinsky group that he

1-07

founded called organizing for action

1-09

OSAA right and they’ve got an army of

1-12

agitators and they are going to their

1-16

fanning out there going to hit

1-17

Republicans even harder next week when

1-20

they go home for recess back to their

1-22

home districts and and we’re watching

1-24

some of that unfold in the Congressional

1-26

town hall meetings some of the heading

1-29

Styles Republicans and conservatives are

1-32

rising up against their rep the

1-34

republican or conservative

1-35

representatives which is utter nonsense

1-37

as you as we both know i am how serious

1-40

do you believe this is we’re talking

1-42

about as you suggested the column

1-43

some-something north of 30,000 people in

1-47

oma and you know they didn’t even tip

1-50

their hand it could have been

1-51

organization organizing for america but

1-54

it had to be for action and what were

1-58

where is this headache

2-00

well they took it out of the Obama

2-03

campaign and 2012 it was part of that

2-05

campaign and they turned it into a 501c4

2-07

so they don’t have to show their donors

2-09

and it what they’re doing so basically

2-12

starts at the training center and they

2-14

put these uh these aren’t like the

2-16

rabble from occupy wall street or even

2-19

black lives matter the these are

2-21

professionally trained agitators their

2-23

school in skis rat rules for radicals

2-26

tactics it a program that last six weeks

2-30

and that’s about 32 that thousands gone

2-33

through that over 32,000 got another

2-35

25,000 or under training now and they

2-38

didn’t they got another brick training

2-40

summit coming up in march and we haven’t

2-43

seen the worst of these protesters of

2-46

these are really going to hit that hard

2-48

but Obama’s the guy who’s behind all

2-50

this

2-51

he’s the mastermind if you look at his

2-53

website down in the little prince his

2-55

new website post-presidency little too

2-58

agate type down there to organizations

3-01

listed one is I don’t know if you can

3-04

see this osa for organizing for action

3-07

the other is the Obama foundation and

3-11

eventually they’re gonna he wants to

3-13

merge them and if they can get the DNC

3-16

which Obama wants to get his guy Tom

3-19

Perez this radical civil rights chief he

3-22

had right in the end held at the DNC you

3-24

get all this together then they get the

3-26

proprietary database of the voters from

3-30

osa which is licensed and they’ve never

3-32

shared that before with the DNC you get

3-34

the email list millions of obama

3-36

supporters from OFA and you get the the

3-39

donor list and once the DNC get that you

3-41

have a superstructure and that’s going

3-44

to be a formidable and recognizing

3-46

infrastructure and around around that

3-49

organizing superstructure that it will

3-51

be unprecedented you already have

3-53

many if not most of the technology that

3-57

large technology firms are already an

3-59

alliance with him as is the National

4-02

left-wing media as is the National

4-04

left-wing academia our colleges and

4-08

universities I made for the electronic

4-11

media and so it is a it is an

4-14

extraordinary development and they mean

4-17

business when it comes to obstructing

4-20

and bringing down this administration

4-22

Paul and we would like you to come back

4-24

a is as soon as you can and technically

4-29

the discussion on this because this is

4-31

the critical issue right now I believe

4-33

base in the country
Give Old Guard Audio a Listen, you will be glad you did!

Dave Rubin of The Rubin Report used to be a big progressive. Why I Left the Left!

Dave Rubin of The Rubin Report used to be a big progressive. Why I Left the Left!

Do you believe in free speech? Do you believe that people should be judged by their character, not their skin color?  Do you believe in freedom of religion?

Dave Rubin of The Rubin Report used to be a big progressive. He even had a show with The Young Turks! But now he’s not a progressive. He has left the left. Why? Dave Rubin shares his story.

Do you believe in freedom of religion?

If you believe these things, you’re probably not a progressive. You might think you’re a progressive. I used to think I was. My show, “The Rubin Report,” was originally part of the progressive “Young Turks” network.

Progressives struck me as liberals, but louder. Progressives were the nice guys; they looked out for the little guy; they cared about women and minorities; they embraced change.

In short, who wouldn’t want to be a progressive?

But over the last couple years, the meaning of the word “progressive” has changed.

Progressives used to say, “I may disagree with what you say, but I will fight to the death for your right to say it.” Not anymore.

Banning speakers whose opinions you don’t agree with from college campuses ? that’s not progressive. Prohibiting any words not approved of as “politically correct” ? that’s not progressive. Putting “Trigger Warnings” on books, movies, music, anything that might offend people ? that’s not progressive either.

All of this has led me to be believe that much of the left is no longer progressive, but regressive. This is one of the reasons I’ve spent so much time on my show talking about The Regressive Left.

This regressive ideology doesn’t judge people as individuals, but as a collective.

If you’re black, or female, or Muslim, or Hispanic, or a member of any other minority group, you’re judged differently than the most evil of all things: a white, Christian male. The Regressive Left ranks minority groups in a pecking order to compete in a kind of “Oppression Olympics”. Gold medal goes to the most offended.

Martin Luther King, Jr.’s dream that his children would be judged by their character and not their skin color was a liberal idea, but these days, it’s not a progressive ideal.

And what about religious freedom – the idea that no one else can tell you what you have to believe? Surely progressives still support that basic right.

Well, not so much.

I’m a married gay man, so you might think that I appreciate the government forcing a Christian baker or photographer or florist to act against their religion in order to cater, photograph or decorate my wedding. But you’d be wrong. A government that can force Christians to violate their conscience can force me to violate mine. If a baker won’t bake you a cake, find another baker; don’t demand that the state tell him what to do with his private business.

I’m pro-choice. But a government that can force a group of Catholic nuns – literally called the Little Sisters of the Poor – to violate their faith and pay for abortion-inducing birth control can force anyone to do anything.

That’s not progressive; that’s regressive!

Today’s progressivism has become a faux-moral movement, hurling charges of racism, bigotry, xenophobia, homophobia, Islamophobia and a slew of other meaningless buzzwords at anyone they disagree with.

The battle of ideas has been replaced by a battle of feelings, and outrage has replaced honesty. Diversity reigns supreme ? as long as it’s not that pesky diversity of thought.

This isn’t the recipe for a free society, it’s a recipe for authoritarianism.

Give Old Guard Audio a Listen, you will be glad you did!

Learn a bit about our next Supreme Court Judge – Tenth Circuit Judge Neil Gorsuch –

Learn a bit about our next Supreme Court Justice –  Tenth Circuit Judge Neil Gorsuch –

President Donald Trump nominates Tenth Circuit Judge Neil Gorsuch to the Supreme Court of The United States of America

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon.

The Federalist Society established this annual lecture in Barbara’s memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.

In 2013, the Honorable Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit delivered the lecture. He was introduced by Mr. Eugene B. Meyer, President of the Federalist Society.

0:09

I want to welcome you all

0:12

13th annual Barbara

0:14

memorial lecture I am eugene meyer

0:17

President of the Federal society and

0:19

this memorial lecture series started as

0:22

many of you know with Ted Olson

0:24

inaugural lecture which reminded us of

0:26

what it means to be an American and how

0:28

are legal tradition is part of our

0:30

identity as Americans both dead and

0:33

Barbara understood this disconnection

0:36

between our tradition our identity we

0:40

want the lecture series to remind

0:42

lawyers of it so that they foster legal

0:44

principles that advanced individual

0:46

freedom personal responsibility and the

0:48

rule of law tends inaugural lecture was

0:52

followed by ken starr Robert Bork

0:55

Justice Scalia judge Randolph Vice

0:58

President Cheney and chief justice

1:00

roberts and judges he gets Jones Douglas

1:03

Ginsburg and Dennis Jacob’s former

1:06

attorney General Michael Mukasey and

1:08

entrepreneur Peter teal that brings us

1:11

to today’s lecture is my honor to

1:14

introduce for today’s lecture the

1:17

Honorable Neil gorgeous is a judge for

1:20

the US Court of Appeals on the tenth

1:22

circuit where he served since 1986

1:25

before his clerkship a force judgeship

1:28

rather he clerked

1:31

all the way clerkship applications or

1:34

and things are going these days you have

1:36

no idea what the order is gonna fit

1:40

I actually think they’re going to send

1:41

out the clerkship applications or with

1:43

with the emits with the additions to law

1:45

school the way way it’s going but anyone

1:47

on before his clerkship he clerked for

1:49

justices wieden kennedy and on the court

1:52

of appeals for judges and tell he was a

1:55

partner Kelly cuber and principal deputy

1:57

associate attorney general in addition

2:00

to his judge ship is also currently an

2:03

adjunct law professor at the University

2:04

of Colorado where he he taught what he

2:06

taught yesterday accident yesterday

2:08

evening and I’d say beyond his paper

2:13

resume judge course which is widely

2:15

viewed as one of the best legal minds of

2:17

his generation

2:19

additionally even as young age he has

2:22

met heard many of his clerks who have

2:25

gone on too many prestigious legal jobs

2:27

including clerkship for the US supreme

2:29

court without further ado it is my honor

2:33

to introduce to you judge neil questions

2:46

actually Jean with the judicial salaries

2:50

being what they are and clerkship

2:52

bonuses what they become I’ve been more

2:58

than tempted to throw in another

2:59

application justice candidate see where

3:02

it goes

3:05

I’m not sure I want to be a law partner

3:07

again but I wouldn’t mind being putting

3:08

those little room and told right briefs

3:10

all day for the price that they’re

3:11

getting paid

3:12

Eric thank you for that very kind

3:14

introduction

3:15

it’s an honor to be with you in a

3:18

special pleasure to be part of a lecture

3:20

series dedicated to the memory Barbara

3:22

Olson and the causes that she held dear

3:26

the rule of law limited government and

3:29

human liberty and it’s not a little dot

3:31

little bit daunting to be added the list

3:33

of folks you’ve mentioned who given this

3:35

talk before

3:36

let me begin by asking whether any of

3:41

you have ever suffered through a case

3:43

that sounds like this one in the course

3:46

of time this suit has become so

3:48

complicated that no man alive knows what

3:52

it means a long procession of judges has

3:57

come in and going out the Legion of

3:59

bills and the suit had become

4:01

transformed into mere Bills of mortality

4:04

but still it drags its very length

4:07

before the court parentally hopeless

4:11

how familiar to set

4:14

could it be a line lifted maybe from a

4:16

speaker at a recent electronic discovery

4:18

conference from a brief for sanctions

4:23

your latest case maybe from a recent

4:26

judicial performance complaint

4:28

well of course the line comes from

4:31

Dickens Bleak House published 1853 it

4:35

still resonates today though because the

4:37

laws promise of deliberation and due

4:39

process sometimes ironically invites the

4:42

in justices of delay and ear resolution

4:45

like any human Enterprise the laws

4:48

crooked timber occasionally produces the

4:50

opposite of the intended effect we turn

4:53

to the law earnestly to promote a worthy

4:55

idea and wind up with a host of

4:57

unwelcome side effects that do more harm

4:59

than good

5:00

in fact when you think about it the

5:02

whole business is something an irony we

5:04

depend upon the rule of law to guarantee

5:06

freedom but we have to give up freedom

5:08

to live under the laws rules and around

5:11

about way that leads me to the topic I’d

5:14

like to discuss with you tonight laws

5:16

irony Dickens had a keen eye for it but

5:21

even he was only reworking familiar

5:22

themes Hamlet rude the laws delay girder

5:26

left the practice of law and discussed

5:28

after witnessing thousands of aging

5:30

cases waiting vainly for resolution in

5:33

the courts of his time

5:34

demosthenes made similar complaints

5:37

2,000 years ago and truth is I fully

5:40

expect lawyers and judges to carry on

5:42

similar conversations about the laws

5:44

ironies 2,000 years from now but just

5:49

because some unwelcome ironies maybe as

5:52

endemic to law as they are to life

5:54

Dickens would remind us that’s hardly

5:56

reason to let them go unremarked and

5:58

then addressed so it is I’d like to

6:01

begin by discussing a few of the laws

6:03

ironies that I imagine he would consider

6:05

worthy of attention by us in our own

6:08

time consider first hour version of the

6:12

Bleak House irony

6:14

yes i’m referring to civil discovery

6:18

the adoption of the modern rules of

6:21

civil procedure in 1938 marked the start

6:25

of a self-proclaimed experiment with

6:28

expansive pretrial discovery something

6:31

previously unknown to the federal courts

6:33

more than 70 years later we still call

6:36

those rules the new and the modern rules

6:39

of civil procedure that’s a pretty odd

6:42

thing when you think about it maybe the

6:44

only thing that really sounds newer

6:46

modern after 70 years is keith richards

6:49

of The Rolling Stones some might say

6:54

looks like he’s done some experimenting

6:56

to in any event or 1938 forefathers

7:02

expressly rested their modern discovery

7:04

experiment on the assumption that with

7:07

ready access to an opponent’s

7:09

information parties to civil disputes

7:11

would achieve fair and cheaper merits

7:13

based resolutions

7:15

how’s that working out for you

7:18

does modern discovery practice really

7:22

lead to faster and more efficient

7:24

resolutions based on the merits

7:26

I don’t doubt it does in many cases but

7:28

should we be concerned when eighty

7:30

percent of the american college of trial

7:32

lawyers say the discovery costs and

7:34

delays keep injured parties from

7:36

bringing valid claims to court or

7:39

concern when 70-percent also say

7:42

attorneys use discovery cost is a threat

7:44

to force settlements that aren’t merits

7:47

based at all

7:48

have we may be gone so far down the road

7:51

of civil discovery that ironically

7:53

enough we begun to undermine the

7:55

purposes that animated our journey the

7:57

first place

7:58

what we have today to be sure is not

8:01

your father’s discovery producing

8:04

discovery anymore doesn’t mean rolling a

8:05

stack of bankers boxes across the street

8:09

we live in an age when every bit and

8:11

byte of information is stored seemingly

8:12

forever and is always retrievable if

8:15

sometimes only at the cost of a small

8:17

fortune today the world sends 50

8:20

trillion emails a year an average

8:22

employees sends or receives over a

8:23

hundred everyday that doesn’t begin to

8:25

count the billions of instant messages

8:27

shooting around the globe

8:30

this isn’t a world the writers of the

8:31

discovery rules could have imagined in

8:33

1938 no matter how modern they were no

8:37

surprise then that many people now

8:39

simply opt out of the civil justice

8:41

system altogether private ATR bounds but

8:45

even now the federal government has

8:46

begun avoiding its own court system

8:49

recently for example it opted for

8:51

private ADR to handle claims arising

8:53

from the BP oil spill

8:55

now that may be an understandable

8:57

development given the costs and delays

8:58

inherent in modern civil practice but it

9:01

raises questions to about the

9:03

transparency and independence of the

9:05

decision-making the lack of the

9:07

development of precedent in the future

9:09

role of our courts and civic life for

9:13

society aspiring to live under the rule

9:15

of law does this represent an advanced

9:17

perhaps something else we might even ask

9:21

what part the rise of discoveries played

9:23

in the demise of the trial surely other

9:26

factors are play here given the

9:27

disappearance criminal trials as well

9:29

but we’ve now trained generations of

9:32

attorneys as discovery artists rather

9:34

than trial lawyers they’re skilled in

9:37

the game of imposing invading costs and

9:40

delays their poets of the nasty gram

9:43

able to write interrogatories in iambic

9:47

pentameter get terrified of trial the

9:53

founders thought trials were a bulwark

9:55

of the rule of law as far as Hamilton

9:58

saw the only room for debate was over

9:59

when / weathered retrials were in his

10:02

words either a valuable safeguard the

10:04

liberty with a very palladium

10:06

self-government what is that still

10:08

common ground today no doubt our modern

10:11

discovery experiment is well-intentioned

10:13

get one of its effects has been to

10:15

contribute to the death of an

10:17

institution once thought essential to

10:19

the rule of law

10:20

what about our criminal justice system

10:23

you might ask it surely bears its share

10:27

of ironies to consider this one without

10:30

question the discipline of writing the

10:33

law down of Cardiff eyeing it advances

10:35

the laws interest in fair notice but

10:38

today we have about 5,000 federal

10:41

criminal statutes on the books

10:43

most of them added in the last few

10:45

decades and the spigot keeps pourin with

10:48

literally hundreds of new statutory

10:50

crimes think every single year

10:53

neither does that begin to count the

10:55

thousands of additional regulatory

10:56

crimes buried in the federal register

10:58

there are so many crimes cowled in the

11:02

numbing fine print of those pages the

11:05

scholars have given up counting and are

11:07

now debating their number when he led

11:10

the Senate Judiciary Committee Joe Biden

11:12

worried that we have assumed a tendency

11:14

to federalize quote everything that

11:16

walks talks and moves maybe we should

11:19

say hoots too because it’s now a federal

11:23

crime to misuse the likeness of woodsy

11:25

the owl or is more words give a hoot

11:29

don’t pollute businessmen who import

11:32

lobster tails and plastic bags rather

11:34

than cardboard boxes can be brought up

11:36

on charges mattress sellers remove that

11:39

little tag

11:40

yes they’re probably federal criminals

11:42

to whether because of Public Choice

11:45

problems or otherwise there appears to

11:47

be a ratchet relentlessly clicking away

11:49

always in the direction of more never

11:52

fewer federal criminal walls some reply

11:55

that the growing number of federal

11:56

crimes isn’t out of proportion to our

11:58

population and its growth others suggest

12:01

that the proliferation of federal

12:02

criminal laws can be mitigated by

12:04

allowing the mistake of law defense to

12:06

be more widely asserted but isn’t there

12:09

a trouble irony lurking here in any

12:11

event without written laws we lack fair

12:14

notice of the rules we as citizens have

12:16

to obey but with too many written laws

12:19

don’t we invite a new kind of fair

12:22

notice problem and what happens to

12:24

individual freedom and equality when the

12:26

criminal law comes to cover so many

12:28

facets of daily life

12:30

the prosecutors can almost choose their

12:32

targets with impunity the sort of

12:36

excesses of executive authority invited

12:38

by too few written laws led to the

12:40

rebellion against King John and the

12:42

ceiling of the Magna Carta one of the

12:44

great advances in the rule of law and

12:46

history bears warning the too many the

12:49

too much and too much an accessible law

12:51

can lead to executive access as well

12:55

Caligula sought to protect his authority

12:58

by publishing the law a hand so small

13:01

and posted so high that no one could

13:04

really be sure what was and wasn’t

13:05

forbidden no doubt

13:08

all the better to keep us on our toes

13:10

sorry in federal 62 more seriously

13:19

Madison warned that when laws become

13:20

just a paper blizzard citizens are left

13:22

unable to know what the law isn’t to

13:24

conform their conduct to it it’s an

13:27

irony of the law that either too much or

13:28

too little can impair Liberty our aim

13:31

here has to be for a golden mean and it

13:33

may be worth asking today if we’ve

13:35

strayed too far from it

13:37

ok beyond the law itself there are other

13:40

ironies of ironies here emanating from

13:43

our law schools target-rich environment

13:47

you say well let’s be kind of the

13:50

professors in the room and just take one

13:51

example in our zeal for high academic

13:54

standards we have developed a dreary

13:57

bill of particulars every law school

13:59

must satisfy the win ABA accreditation

14:02

law schools must employ a full-time

14:04

librarian they’re not a part-timer they

14:08

must provide extensive tenure guarantees

14:10

they invite trouble if their student

14:12

faculty ratio reaches 32 one out the

14:15

same ratio found many in public

14:17

procol schools keep in mind too that

14:20

under ABA standards adjunct professors

14:22

with actual practice experience includes

14:25

me here account only as one-fifth of an

14:28

instructor

14:32

maybe they’re onto something after all

14:34

might be worth pausing to ask whether

14:39

commands like these contribute enough to

14:41

learning to justify the barriers to

14:44

entry and the limits on access to

14:46

justice that they impose a legal

14:49

education can cause students today two

14:51

hundred thousand dollars that’s on top

14:54

of an equally swollen some for an

14:57

undergraduate degree yet another a VA

14:59

accreditation requirement in England

15:03

students can earn a law degree in three

15:05

years is under graduates or in one year

15:08

of study after college

15:09

all of which must be followed by

15:11

on-the-job training and none of this is

15:14

thought to be a threat to the rule of

15:15

law there one might wonder whether the

15:18

sort of expensive an extensive

15:20

homogeneity we demand is essential to

15:22

the rule of law here

15:25

alright so far I’ve visited ironies

15:28

where the law aims at one virtue and

15:31

risks a corresponding vice but it seems

15:34

to me that the laws most remarkable

15:36

irony today comes from precisely the

15:39

opposite direction of ice that hints at

15:41

virtues in the rule of law today our

15:45

court our culture positively buzzes with

15:48

cynicism about the law are shared

15:51

profession and project so many see law

15:54

is the work of robe hacks and shiny

15:57

suited shills judges who ruled by

16:00

personal policy preference lawyers who

16:03

seek to razzle-dazzle them on this view

16:07

the only rule of law is a will to power

16:09

baby in a dark moment you’ve fallen prey

16:13

to doubts along these lines yourself but

16:17

i wonder whether the laws greatest irony

16:20

might just be the hope obscured by the

16:22

cynics shadow

16:24

I wonder whether cynicism about the law

16:26

flourishes so freely only because for

16:29

all its blemishes the rule of law in our

16:31

society is so fundamentally successful

16:34

and sometimes it’s hard to see a

16:37

wonderful like David Foster Wallace’s

16:39

fish surrounded by water

16:43

yet somehow unable to appreciate its

16:46

existence were like Chesterton’s

16:48

man-on-the-street who’s asked out of the

16:51

blue

16:51

why he prefers civilization to barbarism

16:53

and who has a hard time stammering out a

16:56

reply because the very multiplicity of

16:58

proof which should make reply easy and

17:01

overwhelming makes it impossible now the

17:05

cynicism surrounding our project our

17:07

profession is easy enough to see when

17:09

Supreme Court justices try to defend

17:11

laws a discipline when they explain

17:13

their jobs interpreting legal texts when

17:17

they evoke and echo the traditional

17:19

federalist 78 conception of a good judge

17:22

their mocked often viciously personally

17:26

leading voices call them deceiving

17:29

warned that behind their a nine-page

17:32

facades lurk cruising partisans even law

17:36

professors hurry to the microphone to

17:38

express complete discussed and accuse

17:40

them of perjury and intellectual

17:42

security actual quotes everyone if this

17:47

bleak picture I’ve sketched were

17:49

inaccurate one if I believe the judges

17:52

and lawyers regularly acted as shoes and

17:54

hacks and hang up the road i turn my

17:57

license but even accounting for my

18:00

native optimism i just don’t think

18:02

that’s what a life in the law it’s about

18:04

heart i doubt you do either as a working

18:08

lawyer I saw time and again the

18:11

creativity intelligence hard work

18:13

applied to a legal problem can make a

18:16

profound difference in a client’s life I

18:19

saw judges injuries that while human and

18:21

imperfect strove to hear earnestly and

18:24

decide and partially I never felt my

18:27

arguments to court for political ones

18:29

the ones based on rules of procedure and

18:31

evidence president standard interpretive

18:34

techniques the prosaic but vital stuff

18:37

of a life in the law as a judge now 47

18:41

whatever years I see colleagues everyday

18:46

striving to enforce the Constitution the

18:48

statutes passed by Congress the

18:50

president’s to bind us

18:52

the contracts the parties adopted

18:54

sometimes they do so with quiet

18:56

misgivings about the wisdom of the

18:58

regulation addition sometimes was

19:00

concerned about their complicity in a

19:03

doubtful statute but enforcing the law

19:05

all the same believers that ours is

19:08

essentially adjust legal order now

19:11

that’s not to suggest that we lawyers

19:13

and judges bear no blame for ages

19:15

cynicism about the law take our self

19:19

adopted Model Rules of Professional

19:20

Conduct they explained that the duty of

19:24

diligence we lawyers or clients and i

19:26

quote does not require the use of

19:29

offensive tactics or preclude treating

19:35

people with courtesy and respect now

19:40

how’s that for professional promise to

19:42

the public

19:43

I view is sort of an ethical commandment

19:46

as I tell my students that is a lawyer

19:48

you should do unto others before they

19:49

can do unto you

19:50

no doubt we have to look hard in the

19:56

mirror when our professions reflected

19:58

image and popular culture is no longer

19:59

Atticus Finch but Saul Goodman of course

20:06

we make our share of mistakes to as my

20:08

now teenage daughters gleefully remind

20:10

me

20:11

donning a robe does not make me any

20:13

smarter but the road does mean something

20:16

and not just that I can hide the coffee

20:18

stains on my shirt

20:20

it serves as a reminder of what’s

20:22

expected of us what Burke called the

20:24

cold neutrality of an impartial judge it

20:28

serves to is a reminder of the

20:29

relatively modest station as judges are

20:32

meant to occupy a Democratic Society in

20:35

other places judges wear scarlet and

20:37

Irma here we’re told to buy our own

20:40

robes and I can attest the standard

20:43

choir outfit at the local uniform supply

20:45

stores a really good deal

20:47

ours is a judiciary of honest black

20:52

polyester in defending laws of coherent

20:57

discipline now I don’t mean to suggest

20:59

that every hard legal question as a

21:01

single right answer the Sun platonic for

21:04

absolute truth exists for every crazy

21:06

naughty statute or oiled regulation if

21:09

only you possess superhuman power to

21:11

discern it i don’t know about you but I

21:14

haven’t met many judges resemble some

21:15

sort of legal Hercules well maybe my old

21:19

boss fire and light but how many of us

21:22

are going to lead the NFL in Russia

21:24

when a lawyer claims absolute

21:27

metaphysical certainty about the meaning

21:29

of some chain of ungrammatical

21:31

prepositional phrases tacked onto the

21:34

end of a run-on sentence buried in some

21:37

sprawling statutory subsection I start

21:41

worrying for questions like those my

21:44

only gospel is skepticism I try not to

21:47

make a dog out of it but to admit the

21:50

disagreement does and will always exist

21:53

over hard and find questions of law like

21:55

that doesn’t mean our disagreements are

21:57

matters of personal will of politics

21:59

rather than an honest effort of making

22:01

sense of the legal materials at hand the

22:05

very first case i wrote for the tenth

22:06

circuit to reach the united states

22:08

supreme court involved a close question

22:10

statutory construction and the court

22:12

split 54 Justice Breyer wrote to affirm

22:16

he was joined by justices Thomas

22:19

Ginsburg Alito and Sotomayor Chief

22:25

Justice Roberts descended and he was

22:27

joined by Justice Stevens Scalia and

22:29

Kennedy that’s a lineup that the public

22:32

doesn’t often hear about but it’s the

22:34

sort of thing that happens quietly day

22:37

in and day out in courts throughout our

22:38

country as you know but the legal cynic

22:41

overlooks the vast majority of disputes

22:44

coming to our courts are ones in which

22:45

all judges agree on the outcome intense

22:48

focus on a few cases where we disagree

22:50

suffers from a serious selection effect

22:52

problem over ninety percent of the

22:54

decisions issued by my quarter unanimous

22:56

and that’s pretty typical of the federal

22:58

appellate courts forty percent of the

23:01

Supreme Court’s cases are unanimous to

23:03

even though they face the toughest

23:05

assignments and nine not three judges

23:07

have to vote in every single dispute in

23:10

fact the Supreme Court’s rate of descent

23:12

has been largely stable for 70 years

23:15

you don’t hear that this despite the

23:18

fact that back in 1945 eight of the nine

23:20

justices have been appointed by a single

23:22

president and today’s sitting justices

23:25

were appointed by five different

23:26

presidents even in those few cases where

23:30

we do disagree the cynic also fails to

23:33

appreciate the nature of our

23:34

disagreement we lawyers and judges may

23:37

dispute which two

23:38

was legal analysis are most appropriate

23:39

for ascertaining a statute’s meaning we

23:43

may disagree over the order priority we

23:46

should assign two competing tools and

23:48

the consonants with the Constitution we

23:50

may even disagree over the results are

23:52

agreed tools yield in particular cases

23:54

these disagreements sometimes produce

23:56

familiar lineups but sometimes not

23:58

consider for example the debates between

24:01

Justice Scalia and Thomas over the role

24:03

of the rule entity or their

24:05

disagreements about the degree of

24:07

deference to President or some of the

24:09

debates you’ve heard today between and

24:11

among textless original lists these

24:15

debates are hugely consequential final

24:17

but their disputes of legal judgment not

24:20

disputes about politics or personal will

24:22

in the hardest cases as well many

24:26

constraints narrow the realm of

24:27

admissible dispute closed factual

24:30

records and adversarial process for

24:32

parties not courts usually determined

24:33

issues for decision standards of review

24:36

the command deference to finders of fact

24:38

the rules requiring us appellate George

24:40

judges to operate and collegial panels

24:42

where we listen learn from one another

24:44

the discipline of writing reason giving

24:46

opinions and the possibility of further

24:48

review to be sure these constraints

24:51

sometimes point in different directions

24:53

i’m not advocating a single right answer

24:55

to every problem but that shouldn’t

24:57

obscure how those tools those

24:59

constraints often served to limit the

25:02

latitude available to all judges even

25:05

the cynics imagine judge would like

25:06

nothing more than imposes policy

25:08

preferences on everyone else

25:10

and on top of all that what today

25:12

appears to be a hard case tomorrow

25:14

becomes an easy one and accretion to

25:16

precedent as a new constraint on the

25:18

range of legally available options in

25:20

future cases now maybe maybe i do

25:24

exaggerate the cynicism that seems to

25:27

pervade today or maybe the cynicism i

25:29

see is real but endemic to every place

25:31

and every time and it seems something

25:33

fresh

25:34

only because this is our place in our

25:36

time after all lawyers and judges have

25:39

never been much loved Shakespeare wrote

25:42

the history of King Henry the sixth and

25:44

three parts in all those three plays

25:47

there’s only a single joke

25:49

Jack cadence followers come to London

25:52

intent on rebellion and they offer their

25:55

first rallying cry let’s kill all the

25:58

lawyers as in fact that he pretty much

26:01

did but but maybe just maybe the

26:06

cynicism about the rule of law whatever

26:08

the place whatever the time is its

26:10

greatest irony

26:12

maybe the cynicism is so apparent in our

26:14

society only because the rule of law

26:16

here for all its problems is so

26:19

successful

26:20

after all who can make so much fun of

26:23

the law without being very sure the law

26:25

makes it safe to do so don’t our friends

26:30

our neighbors and we ourselves expect

26:33

and demand not just hope for justice

26:35

based on the rule of law our country

26:39

today shoulders an enormous burden the

26:43

most powerful nation on earth the most

26:45

obvious example of people struggling to

26:48

govern itself under the rule of law our

26:51

mistakes and missteps halted by those

26:54

who do not wish as well they’re easy

26:57

enough to see even by those who do

26:59

neither should we try to shuffle our

27:01

problems under the rug

27:03

we have far too many to ignore today

27:06

the fact is the law can be a messy human

27:11

business a disappointment to those

27:13

seeking truth and some absolute sense

27:15

expecting more of the diviner oh except

27:18

for those of us wearing the robes and

27:21

it’s easy enough to spot examples where

27:23

the laws ironies are truly better but it

27:26

seems to me that we shouldn’t well so

27:29

much on the better that we never savor

27:31

the sweet it is after all our shared

27:34

profession to which we devoted our

27:36

professional lives the law that permits

27:38

us to resolve their disputes without

27:40

resort to violence to organize our

27:42

affairs with some measure of confidence

27:44

is through the careful application of

27:47

the laws existing premises were able to

27:49

adapt and generate new solutions to

27:51

changing social coordination problems as

27:53

they emerge and when done well the law

27:56

permits us to achieve all this in a

27:58

deliberative non-discriminatory and

28:00

transparent

28:00

way those are no small things here then

28:05

is the irony I’d like to leave you with

28:07

tonight if sometimes the cynic and all

28:10

of us fails to see our nation successes

28:14

when it comes to the rule of law

28:16

maybe it’s because we’re like David

28:17

Foster Wallace’s fish was oblivious to

28:20

life-giving water in which it swims

28:22

maybe we overlooked our nation’s success

28:25

living under the rule of law only

28:28

because for all our faults that success

28:31

is so obvious it’s sometimes hard to see

28:34

thank you

 

Give Old Guard Audio a Listen, you will be glad you did!