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On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
Law is a social construct but that doesn't make it "not real" either. There will always be people who misconstrue and purposely interpret things in the way they wish, but widely agreed upon rules provide a schelling point for society to focus on. Despite the numerous attacks on our constitutional rights since our founding, would be oppressors have still been consistently forced to chip away at the margins rather than do away with the concepts itself. Even the most anti free speech/anti gun/anti whatever idealogues are stuck having to try to find something to reach for.
Consider for instance the Trump admin's continued efforts to implement tariffs. They're not just saying "we're doing tariffs and we don't need a reason or permission", they're finding old statutes with vague wording that maybe if squint your eyes hard enough and are using only your peripheral vision, maybe it was inclusive to use for tariffs in that manner. That they feel the need to justify themselves at all speaks to the value of having a justification.
My offer to sell you a bridge is complicated by the fact that I do not own the bridge in question, but that doesn't make my offer "not real" either. I really am offering you a piece of paper with ink on it, and I really do expect you to give me your money in exchange for it. Probably I can find other people who will assure you that I do own the bridge; doubtless there is some coherent framing in which accomplices form a "schelling point" for "society" to focus on.
I flatly disagree that infringements on constitutional rights have, since the founding, consisted of "chipping away at the margins", but I fully agree that all actions my tribe has taken in the past or will take in the future that might be considered unconstitutional should be framed in this way. Obviously, any action my tribe engages in should be considered as, at the worst, only "chipping away at the margins", not based on the details of what we do, but purely on appeals to vague historical generalities.
"Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York.". Likewise the suspension of Habeas Corpus under Lincoln.
Obviously "even the most anti-whatever ideologues" are not stuck trying to find something to reach for in any substantive sense. Examples overflow of officials and other power-wielders simply ignoring whatever rules inconvenience them without even a fig-leaf of legal justification. But let us be charitable, and recognize that the sorts of fig leaves you appeal to are in fact useful to would-be abusers; after all, even conmen understand the utility of cooling the mark out. Even under this charitable interpretation, it seems to me that you would need to argue that these fig leaves were sufficiently substantive so as to provide meaningful protection to those being abused. Otherwise, all that you are claiming is that the people abusing their power find it more convenient to whitewash their abuses than to let them stand naked, and the pejorative implications of the term "whitewash" should be all the argument necessary for why this is not a reasonable response to the grievances of the abused.
Previous discussion:
To be clear here, this is no actual recorded statement like this. There is a claim by the defense attorney that they were told this by the judge, but there is nothing to support it but his word and his word alone. Maybe it happened, but "defense lawyer claimed something" is not that much without anything else to support it. Even then, even if it did happen, a judge of a criminal court is a very low level position with multiple appeals courts above them. Their word is not final.
If you were living in almost any other country, we wouldn't even be having this conversation. You would simply not have a gun, and you would not be able to make meaningful legal appeal otherwise.
That's actually a quirk of how the law works, that presidents have used in various ways already even today. Consider for instance the Trump tariffs in place for a year were ruled unconstitutional! And in response the Trump admin has pivoted to another, most likely also unconstitutional, means of implementing his tariffs. But likely doesn't mean it has been ruled on in this specific way, and the US legal system assumes new decisions like that is lawful until otherwise said. You and "your tribe" is benefiting from this just the same. Trump gets to fuck around with the economic wellbeing of companies all around the country at his whim because of this presumption.
That it takes time to sort out many wrongdoings is not a great criticism, no system can have immediate and perfect retification. Come up with one that does first before whining that one of the most consistently successful and free country in the world can't do the impossible.
Ugh, I'm sorry for doing this without responding first to the earlier conversation thread, but:
TheNybblr has made his situation clear, and there's an active court cases with arguments next month over that class of problem; it's not a hypothetical.
Do you believe Dexter Taylor will have a meaningful appeal that either clearly debunks the defense lawyer's claim or sends the case back for a retrial? How about Malinowski? Will New York Citiers be allowed to own stun guns?
The first one is pretty simple, bans on gun ownership for people who have involuntary committed is a common law. Texas and Florida both do it as well. Requiring you submit your history of commitments seems a reasonable part of the ban there. Again, Texas and Florida do a very similar thing except their process is automated https://giffords.org/lawcenter/state-laws/mental-health-reporting-in-florida/
So if anything NJ is lighter there and doesn't pry into your history until you try to get a gun, instead of having a database of everyone by default. Of course this privacy results in requiring personal submission on application instead.
This is the thing most likely to be unconstitutional. Challenge it in court and let the process play out. I never claimed that would be oppressors don't exist, I said that they occur at the margins. Requiring two references is a margin, and even while it's probably going to be ruled unconstitutional, personally it's not a great sign for Nybbler if it's truly stopping him personally from getting a gun.
Because either
He was involuntary committed, and thus wouldn't be able to get one in Florida or Texas either.
He doesn't have two people in his life who trust him to own a firearm and going out of state is easier than finding and convincing other people (many who would be republicans or pro 2nd amendment as New Jersey is a 50/46 state) that he is safe.
It shouldn't be a requirement, but also casually speaking big red flag IMO. I have like ten people in my immediate life who could easily do so if it was required.
We'll see! I don't know the exact specifics of his case and the law as written and what the higher courts will decide based on those. But how would the appeal "debunk the defense lawyer's claim"? He's claiming the judge said something in private, unless he has actual evidence the appeals court isn't going to care. A defense attorney can't say "Dear appeals court, I overheard the judge in the bathroom say he just decided at random. I'm the only one who heard it and there's no recording but please trust me please". He's gonna have to show proof.
No. "the name and hospital affiliation of any mental health practitioner you have ever seen, since birth". Not anywhere you've been involuntarily committed. Any mental health practitioner, you have seen, over your entire lifespan. And you have to sign a disclosure request so they can ask hospitals actively.
New Jersey does run its own Point of Contact system including a mental health database. They just also require active disclosure of everything else, too.
((New Jersey, by statute, also prohibits firearm permits from being issued to anyone with a voluntary mental health commitment, though that's not relevant here except to show it's also more aggressive than Florida in stupid ways.))
The specific New Jersey requirement's legal challenges have been bound up by some case consolidation and standing
delatory tacticsproblems, but we do have other circuits who have looked at those policies and decided they were a-OK. My personal favorite is Antonyuk, where the character references survived because there was an imaginable circumstance where they could be constitutionally applied, and because buying and gun and possessing a gun are different. So the challenge has been live since 2022, the district court's stay of other parts of the law that were blatantly unconstitutional was reflexively stayed and never went into effect.SCOTUS booted the case there back down, without any process protecting the plaintiff's rights in the meantime, and given Rahimi, very little chance of the Second Circuit changing their minds or New Jersey behaving any better. SCOTUS doesn't care. It's not a random illegal-immigrant with a human trafficking background on a holiday weekend.
His primary stopping point is the disclosure requirement; he does not have those names of professionals. Beyond that, many jurisdictions will actively refuse character references from out of county, and the law permits them to reject references arbitrarily.
I don't see where you're getting "in private" from, but the trivial and poor debunking would be to say "that didn't happen" or "there is no evidence of this claim", in their own writing. A stronger one would be something along the lines of "here's the trial transcript, it ain't in it".
I'm not asking you whether they'll have a perfect debunk. I'm predicting -- and willing to bet at nontrivial odds -- that they're not going to try.
You're absolutely right in the sense that appeals court isn't going to care. They don't need to debate whether it happened. That's the process.
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New Jersey's law demands an accounting of all psychiatrists that evaluated you regardless of whether those evaluations were connected to judicial proceedings, not the very narrow category of involuntary commitments ordered by a judge after a psychiatric evaluation.
Ah well that probably is overreaching then. Regardless it doesn't change much as my claim has never been that government doesn't do unconstitutional things, it's that they do it at the margins.
Either by severity, like two references and mental health history is still a pretty doable task as opposed to a straight up ban which wouldn't allow you a gun at all or through time such as Trump illegally stealing billions from American companies through tariffs.
We have two choices here. Presume government is acting legally until ruled otherwise by courts or presume government they're acting illegally and prevent government from doing anything until they affirmatively prove their case. Our founding fathers decided the former is preferable in the design of US government.
When you make an appeal to reasonable deference due to a lack of systemic overreach, it is no longer 'regardless' if the systemic overreach is at what you dismiss as the margins. Your outgroup is by its nature at the margins of your consideration.
'I do not mind constitutional rights being revoked for my outgroup' is not a defense.
Why only two? Why are you unable to come up with other choices of how to perceive and proceed?
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