Due Processes vs. Defamation

“We don’t have to be idiots.”

By and
68

The Connecticut Supreme Court weighed in on a suit stemming from a sexual assault hearing at Yale University that raised tensions between due process protections for accused students and victim blaming. Sarah and David analyze the political background of related cases. Plus:

-States vs. Meta

-David breaks down the law of armed conflict and the Gaza invasion

-“Well-regulated” and its force and effect on the second amendment

-It’s oral argument season at SCOTUS

Show Notes:

-Khan v. Yale University

-David’s surprise guest

By and
Comments (68)
Join The Dispatch to participate in the comments.
 
  1. Avatar photo
    Dan

    Morning thought: instead of Founding Era laws that were enacted setting the limit of how firearms can be regulated, why not instead look for regulating laws that were found to violate the Second Amendment at that time filor defining the contours?

    Collapse
  2. Kvleininger

    At last I’ve heard an explanation of the “well-regulated militia” requirement. I always assumed it was co-equal to the individual “right to bear arms” clause, because logically any firearm can only be used by an individual. In other words, all individuals must logically be part of a well-regulated militia, which logically excludes any individual from operating a firearm outside of such a militia.
    Such a mandate imply (to my simple non-legal mind) that any “unregulated” militia would be unlawful, which makes me conclude that we continue to have a crisis that threatens each of us from individual firearms whether or not their owner is part of a “militia”. I look forward to further explanation, to help me conclude that the framers who wrote this were simply naive about the future evolution of firearm technology.

    Collapse
  3. David H.

    Love the Last Starfighter reference with the death blossom name :)

    Collapse
  4. Philip.R.M.Hunt

    The critical question about the right to bear arms is not who possesses the right (the people or the states) but who created the right (the federal bill of rights or the state bill of rights). Who created the right determines who defines the right.

    David suggests at 49:05 that the operative clause of the 2nd amendment creates the right (“..once you have the clause creating the right….”), but I don’t think that is correct. The operative clause (“the right of the people to keep and bear Arms shall not be infringed.”) is not written as if it is creating a right but rather affirming a right that already exists. At the time the US Bill of Rights was written, the states had already asserted a right to bear arms in their own constitutions, written in a form that clearly is creating the right. Here are two typical examples:

    Pennsylvania, September 28, 1776
    Article 13. That the people have a right to bear arms for the defence of themselves and the state;

    North Carolina, December 18, 1776
    A Declaration of Rights. Article XVII. That the people have a right to bear arms, for the defence of the State;

    The above suggests that the original intention of the 2nd amendment was to acknowledge the right to bear arms previously created by the states and to commit the federal government to not infringe these state created rights.

    This then raises the question of what effect does incorporating the 2nd amendment against the states have. Since the right to bear arms is created by the state constitutions, the effect of incorporation should amount to the Supreme Court merely telling the states to respect the right granted in their own constitutions. The Court in McDonald v City of Chicago (2010) incorporated the 2nd amendment but did not identify or address the above issue.

    Collapse
    1. Avatar photo
      WKDawson

      That does seem to agree more with the logic than all that complicated gobblygook that Justice Scalia babbled, even if David says it was clear. John Calvin's commentaries sometimes go on long discussions of grammar, structure, and meaning of a single passage of scripture, but Justice Scalia's response took more than a minute to wiggle through an interpretation of an operative clause and prefatory clause. Yet the whole thing still doesn't make any sense. I do say, your reading might explain why it is written so strangely.

      This would also concur with state's rights. If California wants to regulate firearms, that is for California to decide, and if Tennessee doesn't care who has a firearm, that is for Tennessee to decide.

      Collapse
  5. Beltonzeigler

    A Second Amendment thought: Could the prefatory clause be an attempt to expand not limit the scope of the amendment. In other words, the drafters intended to enshrine the individual's right to bear arms in the constitution, full stop, but also recognized the importance of the states having well regulated militias as a counterpoise to any trend toward tyranny by the new, centralized the federal power, therefore any attempt by the federal power to suppress the well regulated state militias, by suppressing the right to bear arms, was considered by the drafters to be sufficiently dangerous to be called out specifically as a violation of the general right to bear arms, not a limitation on it. So the constitution both protects the individual right to bear arms, and the importance of the states' ability to rely on that right to field militias regulated by the states. Make sense?

    Collapse
  6. Beltonzeigler

    A nuance to consider regarding certified questions: The Conn. state court only offer an opinion in response to the question certified to it because there was a case or contrary confronting one of its sister federal courts. So that opinion was not in the strictest sense, an advisory opinion. The Conn. court understood the situation quite well, and properly refused to respond to questions that were not necessary to be answered in light to the case and controversy that engendered the question. Is not the rule disfavoring dicta the rule requiring a case or controversy in its most granular application?

    Collapse
  7. Avatar photo
    Sarah’s Buckets

    I am jaded. I think the states suing social media simply see a very deep pocket. Its a chance at a fat settlement. It is simply a new system of taxation. If they actually cared about kids—they would pass protective legislation.

    Collapse
  8. Hunter Heck

    I would be interested in hearing David & Sarah's thoughts on a new article by Will Baude and Robert Leider, "The General Right to Bear Arms," forthcoming in the Notre Dame Law Review. They argue:

    “Bruen’s intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and mores sensible than many lower courts have thought. Understanding Bruen’s methodology requires three basic legal concepts: original-law originalism, constitutionalization of pre-existing rights, and the general law.” (at 2).

    Does this change your views on the history & tradition test? Very interesting that the article dropped just before the Rahimi oral arguments. There has been a bit of talk about general law since Tyler v. Hennepin Cnty, so I wonder if it will get any play.

    The link to the article is here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4618350.

    Collapse
  9. Deleted Comment

    This comment has been deleted

  10. Avatar photo
    Sarah’s Buckets

    Why does a victim of sexual assault report it to the University? These should always be reported to the police—where the victim has immunity and rights during cross exam, such as privacy about sexual history.

    Imagine your assaulted at work by a coworker, your first call would not be your employer but the police?

    Collapse
    1. Avatar photo
      Kmregan7

      I’d hope that victims would do both- but I imagine campus police would be the first call because they’re right there on campus…at the two universities I’m most familiar with there are direct line phones (like pay phones) for emergencies all around so that students can call campus police and they can get help. But maybe a simple solution is that the city police are called automatically?

      Collapse
    2. MathewA

      agreed, sexual assault is a serious criminal matter. It should be handled by real cops, not colleges

      Collapse
Load More