Of Arms and the Law

Navigation
About Me
Contact Me
Archives
XML Feed
Home


Law Review Articles
Firearm Owner's Protection Act
Armed Citizens, Citizen Armies
2nd Amendment & Historiography
The Lecture Notes of St. George Tucker
Original Popular Understanding of the 14th Amendment
Originalism and its Tools


2nd Amendment Discussions

1982 Senate Judiciary Comm. Report
2004 Dept of Justice Report
US v. Emerson (5th Cir. 2001)

Click here to join the NRA (or renew your membership) online! Special discount: annual membership $25 (reg. $35) for a great magazine and benefits.

Recommended Websites
Ammo.com, deals on ammunition
Scopesfield: rifle scope guide
Ohioans for Concealed Carry
Clean Up ATF (heartburn for headquarters)
Concealed Carry Today
Knives Infinity, blades of all types
Buckeye Firearms Association
NFA Owners' Association
Leatherman Multi-tools And Knives
The Nuge Board
Dave Kopel
Steve Halbrook
Gunblog community
Dave Hardy
Bardwell's NFA Page
2nd Amendment Documentary
Clayton Cramer
Constitutional Classics
Law Reviews
NRA news online
Sporting Outdoors blog
Blogroll
Instapundit
Upland Feathers
Instapunk
Volokh Conspiracy
Alphecca
Gun Rights
Gun Trust Lawyer NFA blog
The Big Bore Chronicles
Good for the Country
Knife Rights.org
Geeks with Guns
Hugh Hewitt
How Appealing
Moorewatch
Moorelies
The Price of Liberty
Search
Email Subscription
Enter your email address:

Delivered by FeedBurner

 

Credits
Powered by Movable Type 6.8.3
Site Design by Sekimori

« Article on KY, IN "Castle doctrine" bills | Main | Winchester USA closing -- complications »

Court's use of foreign law

Posted by David Hardy · 19 March 2006 11:10 AM

At the Volokh Conspiracy, Jim Lindgren has a post regarding Justice Ginsburg's references to foreign law, linking to an interesting study on use of foreign law by the Supremes. The gist of the study is that:

1. References to foreign law by the Court go far back into the early republic;
2. The references in constitutional cases have, however, recently escalated.
3. The practice may be justifiable when a constitutional provision refers to reasonableness or its like (cruel and unusual punishment springs to mind) but is hard to justify when construing an express American right or power that lacks such wording. That is, in the great majority of constitutional law cases.
4. In those cases, reference to international standards is suggestive that members of the Court are reaching out to justify illegitimate policy-making, making law and policy rather than construing it.

[Update: Haven't had time to read the study, so I don't know if it counts British common law decisions. The summary refers to an 1820 decision on the definition of piracy. I can readily see use of foreign law in that context, since piracy is an international crime defined largely by international tradition -- that is, a sort of international common law.]

· General con law

2 Comments | Leave a comment

Rudy DiGiacinto | March 19, 2006 6:27 PM | Reply

The word foreign may be a distortion. I'll bet that most of the early "foreign" law was English law. Even many of the early state Second Amendment cases i.e. Bliss v. Commonwealth, cite English law. It would be intersting to know how much is not based upon English law.

me | March 20, 2006 10:11 AM | Reply

If you really want to get your hackles up over not just the use of foreign law, read the decision in Roper v. Simmons, decided last term. The use of foreign law to justify deconstructing the clear intent of the founders is scary; read Scalia's dissent too. It's about as scathing a piece you'll ever read.

Leave a comment