Kurt X. Metzmeier's blog

Click and Clack for the Generation without History?

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A exciting new radio program launched in June that that aspires to do for American history what CarTalk did for automobile repair. Sponsored by the Virginia Foundation for the Humanities, BackStory takes a modern problem and places in its context with a "fab three" of US history: Peter Onuf, the "18th Century Guy," Ed Ayers, the "19th Century Guy," and Brian Balogh, the "20th Century Guy." Ed Ayers (left in photo) is President of the University of Richmond. Brian Balogh (center)is a professor of history at the University of Virginia and Co-Chair of the Governing America in a Global Era Program at UVA’s Miller Center of Public Affairs. Peter Onuf (right) is the Thomas Jefferson Memorial Foundation Professor of History at UVA . (While not exclusively a legal historian, Onuf has written several important books on the Constitutional period.

Backstory has an informative website, with a RSS feed and podcasts of already aired programs. Currently playing is "Traffic: How We Get From Here to There," an examination of the history of transportation in America, sparked by a discussion of traffic congestion in the Virginia-based historians' gridlocked region. The Tappet brothers,Tom and Ray Magliozzi would feel right at home.

 

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State and Local Gun Laws after D.C. v. Heller: Research Resources

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The Supreme Court's recent decision in D.C. v. Heller established an individual right to bare arms, but it has left several questions about the scope of this newly discovered right open--with only a total ban on handguns clearly prohibited. Not surprisingly, cities like New York and Chicago are combing the case to see whether their own laws are vunerable, and at least one locality, San Francisco, has been already been sued. It's pretty clear that this will be happening all over the country, so it is appropriate to point out that there is a free, though ocassionally dated, resources that collects the gun laws and ordinances of all states and local governments in the U.S.

The Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives (a group that knows something about gun laws), publishes an annual (at least in theory) publication entitled the State Laws and Published Ordinances - Firearms (quaintly known to federal lawmen as ATF P 5300.5) The ATF has the (latest) 26th Edition (2005) on its website here. There seems to be some evidence that the new edition is coming soon, but it is not yet available in either print or an online format.

Another valuable resource is the Seattle Public Library's website, which has long maintained a very useful page that collects links to some local codes, to the handful of municipal code publishers, and to other pages that link to online codes of ordinances. Starting here you can find hundreds of city and county gun laws.

It will be a while before the implications of Heller have played themselves out across the pages of America's city ordinance books. But until then, these resources document the pre-Heller state of U.S. gun control.

 

Photo: Chicago Sun-Times photo of Mayor Richard Daley defending city's handgun laws.

 

 

History at the Bar of the Supreme Court

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The as yet not completely dismantled LA Times has an interesting article on the spate of Supreme Court cases that seemed to turn on the justices view of historical as much as legal writings. Reporter David G. Savage's article focuses mostly on the habeas corpus and Second Amendment cases, but he notes that even the Exxon Valdez case dipped into history (Souter's majority cited Hammurabi's code of 1760 BC--about as an old of a precedent as you can get). The article has comments from historians who give the court low marks for its use of the past, although I would note that the scholars they cite (Jack Rakove, Mark Tushnet) tend to be inveterate amicus brief signers themselves.

Relic of the pre-1975 Court System

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While visiting Frankfort this weekend, I saw this old campaign poster behind the register in the Old Capital Antiques store on Broadway (just a few doors down from Poor Richard's Books). It was not for sale--it is kind of a store mascot--but the shop's owner allowed me to take a picture.

 

My preliminary research indicates that Mr. Timmons was running sometime in the late 1960s (perhaps early 1970s) for the minor judicial office of magistrate (popularly known as justice of the peace) in either Whitley or Bell County (in eastern Kentucky). The judicial aspect of this position was removed by the 1975 constitutional amendment that reformed the court system. Among other things, the reforms set up the district and circuit courts as the only trial courts and eliminated party-line voting in judicial elections.

 

Regretfully, Earl's fluffy running-mate remains nameless at present.

Supreme Court Decides Last Cases Today

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SCOTUSBlog LiveBlog will begin coverage of the open session of the US Supreme Court at 10am.  Justice Roberts announced yesterday that the last three cases will be decided today, including the first case in decades to squarely interpret the meaning of the language of the Second Amendment in the context of gun control regulation, District of Columbia v. Heller (07-290).

And now there are three ...

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From live SCOTUSBlog LiveBlog:

10:21 Tom Goldstein - Guns is not being decided today. Last opinion coming now."

That opinion, the fourth of the day, involved Native American tribal courts It joined opinions which denied states the right to extend the death penalty to cases involving crimes short of murder and one which involved the Confrontation Clause of the Sixth Amendment. In addition, the Court, in the Exxon Valdez case, limited punitive damages under maritime law. But no DC v. Heller...

The Chief Justice announced from the courtroom "that the Court will issue all of its remaining opinions tomorrow at 10 a.m." Tom Glodstein, the Court's cockiest commentator and conference card-counter, is predicting "that in addition to Justice Scalia likely writing Heller, Justice Alito is likely writing Davis v. FEC."

Tune in tomorrow, same Bat time, same Bat channel...

Supreme Court Enters Final Week; One Opinion Today?

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The US Supreme Court is entering it's final week, barring a break in precedent. While Monday, June 30, is the last calendared day for opinions, SCOTUSBlog is reporting that at least one opinion will be rendered today (Weds) and perhaps a few more on Thursday. At least seven opinions are believed to be outstanding, including the much awaited District of Columbia v. Heller Second Amendment case.

To follow today's activities, SCOTUSBlog will be live blogging today starting at 10am.

Legal Historians in Robes

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The recent decision in Boumediene v. Bush highlighted the importance of the perspective of legal history in the interpretation of our nearly 220-year-old Constitution. Moreover, an amicus brief by a group of professional historians is prominently cited in the meat of the opinion. However, the case also might suggest the danger that history can be twisted to any purpose, given that both the lead opinion and dissents both employ historical arguments.

The case turned on whether detainees at the Guantanamo Bay military base could employ the common law writ of habeas corpus to challenge their imprisonment, even though that was specifically denied under a provision of the Military Commissions Act of 2006. In a 5-4 decision the court found that the the detainees had that right and that portion of the MCA was unconstitutional.

Justice Kennedy' s opinion is to a large degree an historical survey of the Anglo-American writ of habeas corpus. He draws deeply upon the amicus brief of historians of English and American law signed by Sir John H. Baker (Cambridge), Lawrence M. Friedman (Stanford Law), Sarah Barringer Gordon (Penn Law), and Hendrik A. Hartog and Stanley N. Katz (Princeton) -- to name only a few. Kennedy's use of history is respectful; he is careful to note what the historical precedents do not show.

The Scalia and Roberts dissents also use history, although their focus on a case involving Nazi detainees after World War II (Johnson v. Eisentrager, 339 U.S. 763 (1950)) tends to found their arguments on a questionable historical analogy.

The Boumediene decision will likely not be the only decision this term to ride on historical opinion: expect more historical ruminations when the first case to re-examine the Second Amendment in years (D.C. v. Heller) is decided (maybe tomorrow or Thursday). Speculation is rampant that Scalia is writing the majority opinion, so a scholarly excursion into the late 18th century is pretty certain; perhaps even we will hear echos (probably in a dissent) of a fascinating animus brief by three historical linguists.

Summer Reading: Kentucky Constitutional History—A Small Library

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Despite our rumored history as a federalist state where power is shared between the center and the regions, state constitutional history has gotten short shift by the writers (and more likely) the publishers of history. Books on the history of the federal constitution and its framers can be purchased by the pallet-load, while most any state's library of books of its constitutional history would fit in one of those eco-friendly cloth shopping bags. Ironically, even the current defenders of the flame of pure federalism who decry incursions on state prerogatives fill their catalogues with books on the 1787 federal constitutional convention in Philadelphia, not the one that meat three years later to revise the Pennsylvania constitution or (to give another example) the one that met in 1792 in Danville to draft Kentucky’s first constitution.

This situation obtains in every state, but is particularly acute regarding our commonwealth. Nonetheless there are a few very readable books that every Kentucky lawyer with an interest in the Kentucky constitution should read.

 

Robert M. Ireland, The Kentucky State Constitution: A Reference Guide (Westport, Conn: Greenwood Press, 1999).

Image of IrelandNo list on the state constitution or indeed the history of Kentucky, can be created without including a title or two written by UK history professor Bob Ireland, the unquestioned dean of Kentucky legal history. I could (and well may one day) write an entire piece exclusively on the important articles he has written on the history of state criminal law or its institutions of government. In the 1999, the wisdom accumulated from writing three books and a dozen articles, was employed in writing an encyclopedia of the Kentucky constitution. Its organization as a guide perhaps makes it a little harder reading than his other books, but there are so many interesting points, I’d encourage a try.


Lowell H. Harrison’s Kentucky’s Road to Statehood (Lexington: University Press of Kentucky, 1992).

The main thrust of Harrison’s book is the decade-long struggle on Kentucky’s frontiersmen (along with a few transplanted Virginia gentry) to obtain statehood from Virginia. However, when the delegates to the tenth convention were in grasp of the prize, they realized that they needed a constitution. Harrison effectively recounts how the 1792 constitution was shaped under the hands of George Nicholas to mix the democratic impulses of the woodsmen pushing into the new state’s interior with the concerns for order expressed by the owners of estates in the more settled Bluegrass. The result was a document that included the revolutionary idea of universal male suffrage (without the property requirements in other state charters) but allowed direct election only of the lower house of the bicameral legislature. The founders further evened the deck with a timeless bill of rights that still is part of our current state constitution.

 

Joan Wells Coward’s Kentucky in the New Republic: The Process of Constitution Making (Lexington: University Press of Kentucky, 1979).

Coward’s monograph starts with a discussion of the 1792 convention that complements Harrison’s chapters, before relating the social and economic changes wrought by Kentucky’s growth in the 1790s—changes that led to the 1799 convention that revised the document. The issue of slavery gets a bit of attention as this period was the state’s last flirtation with abolishing the institution before the Civil War took it out of Kentucky’s hands. Ultimately the 1799 avoided more than slavery, failing not only to stem the growing oligarchic control of county government, but fostered it by giving the county court the major role in selecting its own members and the sheriff. Nonetheless, by instituting the popular election of the governor and the upper house of the legislature, the state came closer to true democracy

 

Robert M. Ireland’s County Courts in Antebellum Kentucky

Ireland’s book on the powerful county courts of the antebellum era has perhaps the best discussion of the background to and activities of the 1849 constitutional convention—simply because issues with the unelected local governments so highlighted the need for more democracy in the state constitution (and because there is no monograph of the convention). Under the 1799 constitution, the county court was the center of all power in the localities. From masterful research in the minute order books and the debates of the 1849-50 constitutional convention, Ireland bring alive these long-extinguished political struggles still-embedded in the sinews of our constitution.

 

Two books discussed in a prior post bear repeat mention. First, Hambleton Tapp and James C. Klotter, Kentucky: Decades of Discord, 1865-1900 (Frankfort: Kentucky Historical Society, 1977) offers the best treatment of the historical background and activities of the 1890 constitutional convention. Second, (more self-promotion) Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006) attempts to explain the forces behind the successful 1975 revision of the constitutions judicial article.


The library of good historical treatments of Kentucky’s constitutional history is a small one, dwarfed by many shelves that can be filled with books on the past lore of the University of Kentucky basketball program or on the history of the Kentucky Derby. There is no monographic treatment of the activities off the 1849-50 or 1890 constitutional conventions—despite reams of official documents and full-runs of leading newspapers on microfiche. There is no biography of George Nicholas, or many of the leading figures in Kentucky legal history. So we honor what we have, while hoping for more.

Stanley F. Reed: Man of Maysville

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I recently took research foray into the lovely Ohio river town of Maysville, Kentucky. (For some reason, my trip did not attract the same attention as that of George Clooney and Rene Zellwenger--who premiered their new film, Leatherheads, in George’s Aunt Rosemary’s hometown--or that of Hillary Clinton). Maysville is one of the oldest settlements in Kentucky; its role in U.S. history is as the key terminus in the network of roads to the American West in Henry’s Clay’s ill-fated American System. President Andrew Jackson, who despised both Clay and federal government expenditures, killed the plan and it would not be until President Dwight Eisenhower funded the National Interstate and Defense Highways Act of 1956 (popular name for the Federal-Aid Highway Act of 1956) before a federal transportation scheme this comprehensive would be realized.

While I was there, I took the opportunity to visit the well preserved law office of US Supreme Court Justice Stanley F. Reed. (This is in stark contrast to the St. Louis pizzeria that marks Justice Brandeis first office). I spent a little too much time in the library of the Kentucky Gateway Museum Center to visit Reed's grave, but there are really nice pics on Find-a-Grave.

With the exception of obtaining a degree from the Sorbonne in Paris (the one in France, not Bourbon County), Reed’s early career was pretty typical for a Kentucky lawyer of his time. He read law and was admitted to the bar on 1910 and set up a practice in downtown Maysville near the historic Mason County courthouse. He was elected to the Kentucky General Assembly in 1912, where he served two terms in the house before enlisting in the US Army when America entered WWI. He returned to Kentucky after the war and built a corporate practice with clients like the Kentucky Burley Tobacco Growers Association. Along the way he purchased a large Mason County farm where he raised blue-ribbon Holsteins.

Reed's interest in farming and expertise in the law of agricultural cooperatives made him a natural candidate to join the Federal Farm Board in 1929 as general-counsel. Reed, a Democrat, went on to serve in the same position in the Reconstruction Finance Corporation in the Roosevelt administration, where he helped develop the New Deal's commodity price support policies. In 1935, he was named the Solicitor-General, the third Kentuckian (after Benjamin H. Bristow and UofL law school alumnus William Bullitt Marshall) to serve in that position. (Pop quiz: Reed is one of four future-Supreme Court justices to wear the striped pants and grey morning coat, who are the other three? Hint: One of them is NOT Robert Bork).

In 1938 Reed was appointed to the Supreme Court (the last justice to serve without a law degree; he nicely bookends his fellow Kentuckian John Marshall Harlan, who was the first). He replaced George Sutherland, one of the dying breed of reactionary justices whose majority FDR's appointments had erased. Reed was a solid New Dealer on the court, despite some conservative leanings on the establishment clause and on the incorporation doctrine (which holds that the adoption of the 14th amendment made the federal Bill of Rights apply to the states). He was a workhorse who crafted over 300 opinions in his two decades on the court. Although racial covenants in some of his Kentucky properties caused him to recuse himself in Shelley v. Kramer in 1948, he was in the majority in several of the cases in the 1940s and 1950s that affirmed the civil rights of African Americans, including the 1944 case of Smith v. Allwright, which he authored. Nonetheless, Reed was thought to have had problems with aspects of the holding in Brown v. Board of Education, and may have even considered dissenting, but Warren brought him around and the unanimity of the decision gave it great moral authority. (See the excellent Robert H. Jackson Center sponsored symposium, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892367>, for an interesting behind-the-scenes view of the case from one of Reed's law clerks, Jack Fassett).

Reed retired to his Mason County farm in 1957, where he continued to raise prize dairy cows until shortly before his death in a NY nursing home in 1980.