Analyzing Case Law

[Shoonra]

Well, "the only case on point" is an exception to the generality. But if your state courts have spoken on the issue that pretty much is what you ought to cite.

[amenmesse]

Originally Posted by palani

Case law existed before Shepardizing. Common law existed before case law; that is to say, before extensive reliance upon reporters. Common law is also termed lex non scripta or unwritten law for a reason. But that was in the days when men could think but couldn't write really well as opposed to this age where they write really well but can't think worth a darn. As a result you end up easily being diverted by side issues that have little or no bearing on the real issue simply because there are forces at play that do not want the real issues discussed or decided.

There is a war that is being waged behind the scenes between civil law and common law. Civil law appears to be gaining an upper hand by virtue of rote reliance upon decisions of previous cases where the law stated and not objected to timely is that of statutes. Civil law has always been the law of choice of Louisiana since the French established themselves in New Orleans but the remainder of the country is under the principles of common law. In other words civil law is foreign to 49 of the 50 states. It is not foreign to Mexico or much of Europe. Common law is the law of independence while civil law dictates strictly what is permited and what is forbidden.

As in any war you get to choose sides. Reliance upon statutes and case law built up by reliance upon statutes is the dividing line in this battle.

In my view Shepardizing leads one down a path leading into the enemy camp. What's your view?

Just as an aid to your report.
http://www.svpvril.com/comcivlaw.html

[mrg]

Article IV

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

What is so-called "case law?"

Does it presume to distinguish so called "statutory law?"

What is in pari materia?

What, precisely, and with most specific particularity, does "upon the same subject" mean?

[indago]

Analyzing "case law" is a tricky business. Just take a look at what has transpired concerning the second amendment and US v Miller:

In the case of US v Wright, Judge Kravitch had declared: "In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the Court considered whether the National Firearms Act of 1934, 26 U.S.C. § 1132, which required the registration of certain firearms, violated the Second Amendment rights of two individuals indicted for transporting unregistered sawed-off shotguns in interstate commerce."

We all know, and the record shows, that Mr. Miller and Mr. Layton were not "transporting unregistered sawed-off shotguns in interstate commerce." They had one shotgun in their car, and it was not for sale. This court has tainted the record against these two men by attempting to project the image that they were "transporting unregistered sawed-off shotguns in interstate commerce", bootlegging these shotguns for sale in interstate commerce without license. Thus, the court was paving the way for their agenda.

Hickman v Block is a federal court of appeals case from the ninth circuit, in which the appellate judge Hall had declared: "The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon."

First of all, Jack Miller was not convicted of any crime in the federal district court. Second, Jack Miller was not the appellant in the case before the Supreme Court; the government was; and, the government, being the appellant in this case, did not propose the "hypothesis that the Second Amendment protected his possession of that weapon."

Judge Hall also wrote, in the case of Hickman v. Block: "Moreover, even if we determined that Hickman had standing to sue for violation of the Second Amendment, his suit would nevertheless fail because the Second Amendment is not incorporated into the Bill of Rights." Now, how credible is this ridiculous proclamation???

It is noted in Stephen P. Halbrook's writings concerning US v Miller: "Defendants had been convicted of transporting in interstate commerce a shotgun having a barrel less than eighteen inches without having in their possession the stamp-affixed written order required under the Act, which was the first federal statute ever passed, which regulated, through taxation and registration, the keeping and bearing of certain arms."

Jack Miller and Frank Layton were not "convicted of transporting in interstate commerce a shotgun having a barrel less than eighteen inches without having in their possession the stamp-affixed written order", as noted by Mr. Halbrook. A federal circuit court of appeals has made the same erroneous assumption.

There was no trial in the case of US v Miller. Jack Miller and Frank Layton filed a timely demurrer, rejecting the claim in the indictment filed against them by the federal government that they had committed a crime in having a shotgun in their car. From the district court records it is noted: "The demurrer is accordingly sustained." The federal district court in Arkansas had "quashed" the indictment.

It is also noted: "Although the judgment against the right to possess sawed-off shotguns was a default judgment based on the non-appearance of defendants, Miller stands for the proposition that the people, in their capacity as individuals, could keep and bear arms appropriate for militia use."

The judgment of the Supreme Court in the case of US v Miller was not "against the right to possess sawed-off shotguns"; it was against the dismissal of the indictment by the federal district court in Arkansas. The indictment brought against Mr. Miller and Mr. Layton by the government was to be reinstated, and a trial was to be conducted so that facts could be presented and evidence developed for further proceedings before the Supreme Court, if any.

The eighth circuit federal court of appeals has declared, in their opinion: "In Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce. In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon"

We all know that Jack Miller and Frank Layton were not convicted of any crime in this case, but instead, were released from custody, the judge quashing the indictment brought against Mr. Miller and Mr. Layton by the government prosecutors. The eighth circuit court of appeals, in making this erroneous declaration, tainted the record, making them appear as though they were appealing a conviction of a crime, and setting the pace for their other bold declaration: "In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon". We all know that there was no representation for Mr. Miller and Mr. Layton at the hearing before the Supreme Court; therefore, they could not have made the argument that the eighth circuit federal court of appeals referenced.

Professor Carl T. Bogus, a member of the Board of Directors for Handgun Control, Inc., in an article entitled The Strong Case for Gun Control, has edicted: "United States v. Miller -- a man was convicted of transporting a double-barrel shotgun in interstate commerce, in violation of federal law. He argued that the legislation was invalid because it violated his rights under the Second Amendment. In affirming the conviction, the Court held that the Second Amendment must be interpreted and applied in the context of the government's organizing, arming, disciplining, or calling into service the militia." And again, another duplicitously bold declaration.

Brannon P. Denning, in his scholarly work "Can The Simple Cite Be Trusted", has noted of the Miller case that "lower courts have strayed so far from the Court's original holding to the point of being intellectually dishonest". He also noted: "Read narrowly, the Supreme Court's decision was based more on an absence of evidence in the record than any searching inquiry into the origin and development of the Second Amendment."

In 1982, Bruce Allen Murphy, then assistant professor of Political Science at Pennsylvania State University, wrote a book, entitled The Brandeis/Frankfurter Connection, in which he documented his discovery of letters and papers of the late Supreme Court Justice Felix Frankfurter, which contained some of the collection of notes and letters of Supreme Court Justice Brandeis. He detailed the extra-judicial activities of Justice Louis D. Brandeis and revealed that while Felix Frankfurter was professor at Harvard, Justice Brandeis would communicate with him about his feelings on a particular social goal, and request that he have some of his most gifted law students produce some papers, essays, and articles for the law reviews, which professed these views. He wrote: "Once these articles were in print, the justice would cite the information and analysis, as well as "the mandate of opinion in the Law Reviews," to lobby various politicians and his own colleagues on the Court. It is interesting that these student-authors would later be placed by Brandeis and Frankfurter in a plethora of New Deal Agencies, where they could help to implement many of the policies that they had earlier been influenced to propose in print."

Will the subterfuge and deceit never end?


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[joseph sugarman]

Good Morning Indago,

To whom do you direct the opinion, "Analyzing case law is a tricky business."? Your analysis of several, interrelated cases seems to support you ability to separate wheat from chaff.

Although, I would have to modify my position a bit by your somewhat omnidirectional, presentational approach to your request for us to consider only what transpired in just one case, US v Miller.

I would have found it easier to follow your line of reasoning had you completely outlined United States v Miller before digressing into that cases effect on a line of cases seemingly based on the grossest examples of specious reasoning and outright displays of ignorance engaged in by federal judges.

I found your last question ultimately mystifying. Are you wondering if the analyis of case law is tricky because of subterfuge and deceit. The cases you have exposed to us have been their, published , for you to find. They are certainly examples of the grossest, judicial negligence being continuouly bootstrapped by inept members of the bench; futher memoriaized by lazy professorial writers.

Any competent pro se or attorney would certainly only use any of them in support of negative averments in an appropriate case. You have demonstrated you would know how to use them properly.

I started this thread, hopefully, as a helpful tutorial primer. It is based on the methodology I was taught. Others may use another method, and I hoped they might share with the rest of us.

I find it tedious, sometimes, to properly assemble a line of cases on point, in support of a legal theory. I do not find anything tricky about using it.

Which brings me back to my original question to you. Is analyzing case law, in your opinion, a tricky business to pro ses who do not properly follow a strict method? Or are you directing your opinion ony at the supposed professionals in black robes, and their ivy hall counterparts?

[joseph sugarman]

Sorry, I double posted.

[indago]

What I had posted wasn't directed at anybody; just an afterthought concerning the state of "case law" in the courts. And I presented just one example of a particular case mentioned, and how the courts have tortured out their particular agenda therefrom.

[indago]

joseph sugarman wrote:

I would have found it easier to follow your line of reasoning had you completely outlined United States v Miller before digressing into that cases effect on a line of cases seemingly based on the grossest examples of specious reasoning and outright displays of ignorance engaged in by federal judges.

Jack Miller and Frank Layton were apprehended carrying a sawed-off shotgun in their car from Claremore, Oklahoma to Siloam, Arkansas. They were brought, under indictment, to the federal district court in Arkansas. The indictment filed against them charged, in part, that they "did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge shotgun having a barrel less than 18 inches in length...", in violation of the Federal Firearms Act, 26 USC Section 1132, a felony crime. Their response to the indictment reads, in part, that the National Firearms Act "offends the inhibition of the Second Amendment", infringing upon their right to keep and bear arms. Judge Heartsill Ragon, of the federal district court, agreed, quashed the indictment, and they were discharged from custody.

The prosecutor filed a direct appeal to the United States Supreme Court. There was no brief filed by Mr. Miller or Mr. Layton. Within the opinion of the Court, it is noted: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

So, the key words here are "In the absence of any evidence", and "we cannot say". There was no trial in which evidence and facts could be developed; and, there was no representation for Mr. Miller or Mr. Layton at the hearing in the Supreme Court. Therefore, the declaration: "In the absence of any evidence". Also, notice that the Supreme Court declared that: "we cannot say"; and, they didn't. They were declaring that "In the absence of any evidence" pro or con concerning a 'shotgun having a barrel of less than eighteen inches in length', "we cannot say" that it could be used by a military or not. They didn't say it, and they remanded the case back to the trial court for a trial on the issues for evidence to be produced and facts to be developed.

The Supreme Court "unquashed" the indictment and sent the case back to the federal court in Arkansas for trial. There was no trial. The case stands as such, with no hearing on the merits of the case. An "unquashed" indictment was certainly not dispositive of the rights of Mr. Miller and Mr. Layton; nor of any of us. If a trial would have been held, it is quite possible that a jury would have arrived at the same conclusion that the judge did in his dismissal of the indictment. After all, who is the federal government to come into Arkansas and tell them what they can use for protection, and whether or not they can carry this protection in their car?

[joseph sugarman]

Good Morning Indago,

Thank you, so much, for posting this complete synopsis of the various travails of the case. Now I will study it, and then go back and reread your first post on the subject.

You have provided a series of cases of which I never had any reason to read before now. You certainly have done much research on the subject. You have provided valuable information to the forum.

Do you have any idea, or have you read anywhere in the is history of the main case about why the District Court ignored the order of the Supreme Court to retry the case? I would have thought Miller et. al. would have demanded a retrial.

[indago]

joseph sugarman wrote:

Do you have any idea, or have you read anywhere in the is history of the main case about why the District Court ignored the order of the Supreme Court to retry the case? I would have thought Miller et. al. would have demanded a retrial.

Mr. Miller died suddenly.

JACKSON MILLER

A few years back I got into several discussions on various message boards concerning the second amendment, and, of course, the case of US v Miller came up. Individuals made various claims concerning what the Supreme Court had stated about the case, and I examined into it, and found that many of the claims made were unfounded, putting it mildly. Someone would post a quote from a court case, and I would find that what was quoted was not what the Miller case was about. I have compiled a file on a disk, much of which I have quoted from in entering the posting that I made. I have an archive of compiled material that I copy and paste from — one of my hobbies...



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