A Great Case Out Of Sequence: Bad Valentines, Bank Robbers, And Taxes


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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29 Responses

  1. Avatar Patrick Cahalan says:

    Stellar work, as all of these are, Burt.Report

    • Thanks. I owe thanks to David Ryan and Tim Kowal and Mark Thompson for their volunteering to review the post before I put it up there and offering me good constructive criticism. Any errors or mistakes or awkward phrasings are mine and mine alone.Report

    • I try to avoid mere cheerleading in comments, but I have to agree with Patrick. I love these posts, whatever the context of your writing them. And if offering an otherwise superfluous comment keeps ’em coming, then it’s worth it.Report

  2. Avatar NewDealer says:

    Ah McReynolds. He even refused to be part of the annual Supreme Court photograph because it would mean sitting next to Brandeis.

    I would argue that the big sea change from Miller to Heller was largely because Miller was either unenforced or selectively enforced. This would require more research but I imagine that the Miller decision only came up in connection to criminal trials. Basically, if they caught some bankrobbers on the way or from the crime.

    By Heller and McDonald’s time, the culture had shifted. The NRA was another organization that went through a right-wing takeover in the 1970s, etc.Report

  3. Avatar Mike Dwyer says:

    Very impressive and informative Burt. What I find most interesting is how much impact the ‘gangster era’ had on U.S. gun law. And the statements coming out of that day do not seem dated in the least. The 1924 quote you included…

    ““I want to say that I am unequivocally opposed to pistols in any connection whatever. If you want something in the home for defense, there is the shotgun and the rifle, but a pistol is primarily for the purpose of killing somebody.”

    .. could easily come out of a debate today. History is certainly a circular thing at times.Report

    • Avatar Don Zeko in reply to Mike Dwyer says:

      It could, and I wonder why it only comes up in the context of semi-auto rifles, rather than pistols. Personally, I’m much more sympathetic to a handgun ban than a AWB, since at least semi-auto handguns really do have characteristics that make them particularly well suited for criminal use.Report

      • Avatar Mad Rocket Scientist in reply to Don Zeko says:

        I’d be much more supportive of a handgun ban if there was an effective alternative for civilians to protect themselves with. Make a portable device that can carry multiple rounds like a Taser X12, or shoot Spider-Mans Web Fluid, or something else less-than or non-lethal.Report

        • Avatar Glyph in reply to Mad Rocket Scientist says:

          like a Taser X12, or shoot Spider-Mans Web Fluid

          While in principle I like/agree with this, I strongly suspect that there would still be an outcry to ban when these weapons were invariably and increasingly used to criminal ends. The first woman that is immobilized via taser-like-weapon, or SpiderWeb, then raped, would be a national horror show (and with good reason; because that would be horrible).Report

          • Avatar Kim in reply to Glyph says:

            Just use flashbangs. Has the great effect of hurting everyone in range. And, hopefully, summoning police.

            (Yes, yes, a criminal could have someone out of range… but by then you’re talking an ambush, anyhow, and those are worse with guns)Report

          • Avatar Mad Rocket Scientist in reply to Glyph says:

            Anything that can equalize the force delta between a 200 lb man & a 90 lb woman can still be turned against the 90 lb woman. There is no getting around that until we can make simple machines that can discern intent.

            So I’ll always root for the force equalizer, even if it can be used for evil, because the alternative is unacceptable to me. If the force equalizer can be made less-than lethal while still being as reliable as a firearm at stopping an attacker, then I support making them widely available.

            I always find it interesting that local laws are bipolar on guns & less-lethal alternatives. Some outlaw them all (with penalties being equal for firearms or mace/tasers), some only outlaw mace/tasers/pepper spray. I don’t know of any that restricts firearms, but leaves the door wide open to less lethal alternatives. I would think that anything less than a firearm should be available to anyone who wants it.Report

        • I’ve not got to Heller yet, and I know that in fact the holding in that case is a lot squishier than many would like it to be. But if there’s one thing I can say Heller does make clear: a complete handgun ban is unconstitutional.Report

        • Avatar Mike Schilling in reply to Mad Rocket Scientist says:

          The lethality of a handgun is a necessary part of its defensive value. You can hold someone at bay with a revolver until the authorities arrive, because he’s not going to risk likely death to get away. If all you’ve got is a fancy taser, it makes sense for him to rush you, taking the chance that you’re a poor shot or will get rattled, because at worst he’s temporarily disabled.Report

          • Avatar Mad Rocket Scientist in reply to Mike Schilling says:

            True (& I don’t honestly think the technology is anywhere close to being as reliable as a firearm at stopping an attacker, so firearms are still it, IMHO).

            But if I have a Taser, I’m not gonna try to hold him at bay, I’m just gonna try to zap him before he has a chance to figure out what I have in my hand & then hog-zip-tie him.Report

  4. Avatar M.A. says:

    Thanks. It’s good to have the background reference available.

    I suspect the discussion on Heller will reinforce my standing position: the 2nd Amendment desperately needs a rewrite to clarify what the hell it actually means. To most people with any training in logic, it indicates that the right to keep and bear arms is for purposes of providing said arms to organized militia service upon need – that the bearers are to be part of a “well regulated” (that is to say, trained and organized) militia, whose arms are on record with the local militia leaders and who can be called upon in the event of a military event to serve.

    What’s frightening is how, despite the complete failure of the BYOF militia system, the 2nd amendment was never rewritten to properly clarify what was meant. The founders certainly didn’t mean for every drunken or inbred wacko with a gun to try to overthrow the government, they proved that quite decisively when putting down early rebellions.

    If I had to put one failing of the founders above all their other faults, perhaps that’s it; they were astoundingly bad predictors of future utility. Their language was astonishingly imprecise, relying very much on their own understanding of word choice and mutual assurances to each other of what they meant (as one can understand reading the Federalist, Anti-Federalist, and various letters they sent to each other) by ambiguous wording. Their assumption that the Constitution would be amended at need in order to supply necessary clarification or adaptation in the face of challenges betrays an astonishingly bad judgement as they failed to recognize the potential for fetishization and pseudo-religious worship of balderdash that isn’t even in the constitution but that rubes can be convinced is anyways. Perhaps most importantly, they failed to recognize how fast their notion of vaguely-connected local governments would change as communication and transportation sped up and shrank the world.Report

  5. Avatar Tod Kelly says:

    Man I love these posts. Great job, Burt. ANd thanks for going out of order with this.Report

  6. Avatar Citizen says:

    What is your definition of “Free State”.Report

    • Avatar Burt Likko in reply to Citizen says:

      Sorry, Citizen, but I haven’t taken the time to define that term or, as they say, “do the epistimology” necessary for such a definition to be meaningful.

      Besides, I’m not doing political philosophy or even particularly intense legal analysis here. My post is about history and law, and is intended to inspire reflection on how they influence contemporary culture.

      So not only don’t I think I’m capable of answering the question, I’m also not sure what its significance is here. Why do you ask?Report

  7. Avatar Fish says:

    Fascinating as always. Thanks!Report

  8. Avatar Tim Kowal says:

    I was surprised at my own reaction upon reading your bio on Justice McReynolds. I felt somewhat suspicious, or slightly offended even, that anyone would “peek under the robe” of a jurist. This is not a considered opinion, it was just my gut response. Maybe I unintentionally ignore personal facts about judges because their reasoning should stand on its own. Is the “Justice is blind” thing supposed to work the other way? Then again, I’ve read a bio of Ollie Holmes, and Marshall.

    Great piece, Burt.Report

    • Avatar Burt Likko in reply to Tim Kowal says:


      If all I wanted to do was dissect the Miller opinion, as though I were briefing it for law school, then I’d largely agree with your initial reaction about the judge’s personal predilictions and his personal life being irrelevant.

      But I briefed enough cases in law school to last a lifetime, thank you very much! With these posts, I’ve never wanted to do heavy legal lifting, I’m trying to give a sense of the history and the culture and tell the story of what the case is all about. The law, and the effect of the case on the law, is only one of many players in that effort.

      I’ve done biographical profiles of John Marshall and Joseph Story in previous efforts so profiling Justice McReynolds seemed in keeping with that. Justices Scalia and Stevens for my upcoming piece are proving to be challenging subjects — I’ve followed their careers for years as a lawyer myself and Justice Scalia is both still serving, and if you were to ask for a list of names who can instantly polarize opinions amongst reasonably well-informed Americans, his would probably be in the top ten.Report

    • Avatar Burt Likko in reply to Tim Kowal says:

      Oh, and other Justices’ biographies are worth reading, too. Sandra Day O’Connor’s biography was fascinating, and John Marshall was a political giant already before taking the bench. I’d be interested in good bios of Earl Warren, Thurgood Marshall, and W.H. Taft, if anyone has any they wish to commend for special attention. I’d probably very much enjoy a biography of Clarence Thomas as well, but something tells me there won’t be one any time soon.Report