Let me first note, I really like NPR in general, and the NPR Politics podcast in particular. I'm a regular listener. I don't buy the "liberal bias" line about NPR at all, and generally find that it has good, straight forward, reporting.
I haven't been too thrilled by the addition of Nena Totenberg, however.
Seventy-seven year old Totenberg has a reputation for Supreme Court reporting going way back. And while I complain about the top of everything being vested in the Boomers, I will note that Totenberg is a real exception in that most of the hosts of Politics are Millenials, which is very refreshing. I have no one specific thing, other than I just feel that Totenberg is an example of an antiquated view on the Court somehow. A little snarky, sort of inside baseball, kind of approach to somebody who maybe has been around the Court a little too long.
Maybe.
Anyhow, there's a case in front of the United States Supreme Court regarding whether the 2nd Amendment provision regarding the right to "keep and bear" arms means you can carry them concealed or not. This is the episode:
The Docket: Do You Have The Right To Carry A Gun Outside Of Your Home?
In addition to Totenberg NPR invited Joseph Blocher to speak.
And this, dear reader, gives us a prime example of everything wrong about press Supreme Court coverage.
I've already listed my somewhat vague complaints about Totenberg, which are admittedly perhaps completely unfair.
Blocher is a law professor, and as such, however, his opinion here is, well, much like a law professor's.
Being a law professor is often an exercise in evading the practice of law Far too often law professors walked through the doors of a law firm, and then fifteen minutes later went crying out the front door after finding out that it involved hard, hard, nasty brutish, work.
So they entered a law school where they don't have to deal with the reality of law as it really is, in the nasty real world, where real people are.
Which often makes their views on big topics in the law 1) irrelevant; 2) worthless, or 3) dangerous.
This time it was pretty questionable.
Now, Blocher, in looking him up, and about whom I know nothing at all personally, worked on the Heller case, as a practicing lawyer, which is why he is probably a professor in the Duke Center for Firearms Law. Heller was the big case that found that the 2nd Amendment was incorporated into the full Bill of Rights and that it conveyed an individual right.
Having a Center for Firearms Law means, however, that you have a center for things most students don't deal with in their real law practices. Right there, that's worthy of a complaint from a practicing lawyer. A Center For Small Claims Court Law would be much more useful. A Center For Firearms Law sounds too much like a Center For The Way Law Professors Feel The World Should Be.
M'eh.
Anyhow, Blocher is a top dog there.
Now again, I know nothing about him. Just looking him up, it looks like he's built a nice career with this being a partial niche in it. He graduated from law school in 2006. That's long enough ago to have entered picked up the ability to really practice as a real lawyer, which takes about a decade after graduation for some field, and less time for others. I.e., to be able to practice on your own.
He then clerked for a year.
Mm. . . . .
Clerking had a somewhat prestigious reputation when I graduated from law school, and it still does, but it's evolved over time. Clerks used to serve one hitch for one judge and then be booted out into the cold real world a year later.
And that's what his first clerkship did.
First?
Yes, first.
We're starting to see the phenomenon of multiple clerkships now This is pretty much a new thing. Also a new thing, FWIW, is permanent clerkship. I.e., clerks who make that a career, which Blocher has not done, I'd note.
Blocher then went to work for almost a year. . . yes, almost a year, for a law firm, where he helped brief Heller. And then he went back into a second clerkship. Then, after a year of doing that, he became a law professor at Duke.
So he practiced law from September 2007 until June 2008.
This demonstrates everything wrong with law schools. Less than a year of actual practice? Nobody should be teaching law to people who will practice it who hasn't been in the trenches. A law professor teaching law to students who will be lawyers with less than a year of practice is like giving the position of Chairman of the Joint Chiefs of Staff to a guy whose strategic experience is limited to paying Stratego.
So, again, me'h.
Now, some would immediately note, and some lawyers at that, that to teach a position in a law school surely shouldn't have to mean that you've been a practicing lawyer. The professors in the physics department didn't built atomic bombs, probably, before going to work there. And that's quite right.
But law isn't like those sorts of disciplines. Professing disciplines, of the traditional type, save for the clergy really require you to be out in the muck before you really have an appreciation of what's going on. Those teaching medicine should have seen patients, for example.
And the law belongs to the people. It's easy enough to imagine that you know all about a legal topic, but you don't know anything about it until you've actually practiced law. A think like an individual right to carry a firearm may seem like something you can grasp through statistics and study, but until you are dealing with somebody whose ex spouse is threatening to beat them to death. . . well you don't.
Well, NPR, with Nena and Skippy, went on to try to consider the history of concealed carry and the law.
Totenberg did a good job, in spite of my criticism of her, in giving the history of the recent change in the approach of the states. Need to carry did use to be a requirement in most states in recent years, but has really changed. So that was correct. Where the show dropped ball, however, was here:
RASCOE: It's counterintuitive.
TOTENBERG: It's very counterintuitive.
Okay, first of all, it is simply not the case that the legal profession universally thought there was no individual right to carry a firearm. In fact, it was hotly debated as there wasn't a case that had clearly decided it. But the one case that did exist, from the 1930s, strongly suggested such a right was in fact there. That results oriented opinion went as far as it could in restricting the one thing before it, a sawed off shotgun in the hands of a felon, but even in that, it suggested the right was there.
Now, at this point, Skippy leaped in to correct Nena, right?
No.
Let me also note that none of the "conservative" judges of the Burger era were all that conservative. Following the Second World War the Court became the domain of the left, and conservative judges of that time simply weren't all that conservative. It was simply a liberal court era. The first real conservative anyone nominated was Bork, who failed to gain a seat after the Senate, with Joe Biden playing a prominent role in it, skewered him for being conservative. That act held back an evolving conservative evolution on the Court which had, in part, been inspired by an activist Court simply making things up.
This doesn't mean Burger was a flaming liberal, either. That's not true at all. Rather, he was conservative in context. As Totenberg notes, he was a Nixon appointee, and Nixon was a conservative in context. Nixon wasn't Reagan, in other words.
But there were lawyers around, even as far back as that, and further, who felt there was an individual right to keep and bear arms. And there were those outside of the legal field who certainly did as well. It was 1993, for example, when Jeffrey R. Snyder penned A Nation of Cowards, a blistering critique of the gun control culture, which ran in the journal National Affairs.
Which gets us to two things.
The Constitution enumerates certain rights, certain rights can justifiably be implied from it that aren't enumerates, and reasonable restraints on the rights that are present or implied can be imposed. But in the long era following the Second World War and up until the last decade, some still were.
That's a subversion of democracy at worst and leads to contempt of the law at best. Under Chief Justice Roberts that trend has been retreating, and it may now have actually ended.
Does that mean you have a right to carry a firearm outside of your home without government permission? Certainly Does that mean that you have a right to carry it concealed? That's much less clear. Can some restraint be imposed? Again, certainly. Can they effectively be so strict as to keep you from carrying anywhere except the game fields and the range? No. Can the government insert itself into knowing what you are doing? Again, probably.
Should NPR get a new Court reporter? I wish they would.
Should Professor Blocher be tossed out on his butt and made to practice real law for a decade? Undoubtedly, and for his own good.
Should Duke do away with the Center for Firearms Law and create a Center For Small Claims Court Practice? It should.
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