Our system of law is based on the concept of “Common Law”. What this means, in short, is that the law is the same everywhere it applies. A federal law applies the same way in all parts of the US. A state law applies the same way throughout that state.
It also means that how the law applies does not change from court to court, judge to judge, and party to party.
It is what takes us to “No one is above the law.”
Consider a law that was written in the late 1800s that says, “No man shall go armed within 100 feet of the ballot box”.
At the time it was written, everybody “knew” what it meant. It meant, “leave your guns at home when you go to vote.”
By the exact words, though, a woman voting could go armed to vote. Some might argue that “man” meant both man and woman. Others will argue that it actually did mean just “man” because women don’t vote.
That has changed. Women do indeed vote, today.
Here is where “case law” becomes important in the idea of “common law”.
The town arrests a woman for carrying a pistol on her hip as she went to vote. They claim that “no man” includes women. The case is brought before the town judge.
There, the town judge finds that “no man” does indeed apply to “women” and finds her guilt, sentences her to time served and moves on.
The next day they bring another woman into the same court for the same charge. This time the woman is a hottie, she bats her eyes at the judge, when they are talking about how she should spend the next 30 days in jail, she quivers her chin. In the end, the judge says, “I find her not guilty. The law plainly says “man”. She is a woman. She is not a man.” With that, he releases her.
The punishment for both women was the same, they were both released for time served. The only difference is that the first woman is “not guilty” and the second is “guilty.”
This is where “common law” comes into play. According to common law, those two women should have both been found guilty or both should have been found not guilty. In action, what this means is that the prosecutors would have said something to the judge about his prior ruling.
“Hey Judge, do you remember the other day when you found that “no man” included women? This is the same thing.”
Now the judge’s heart is going pitter-patter. She is a true hottie. She was even showing off her ankles!
The Judge says, “No, I don’t remember” and finds for the women.
The prosecutors fix that by saying “Hey Judge, do you remember in Township of Nowhere v. Jane Dow, decided in this court, on May 12th, that you said…”
Now the Judge doesn’t have a choice, he is presented with the actual ruling he made and because common law requires it, he finds the second woman guilty as well.
Time moves on, instead of having the ballot box in the sheriffs’ office, 10 ft from the door, the ballot box is in the high school gym. The gym holds a 94ft long basketball court. There is another 10 feet on the ends for safety, and then there are the bleachers.
Overall, the distance from the main doors to the gym and the back wall is around 140 ft. The ballot box is at the far end near an exit. The rest of the gym is filled with tables for people to write at, as well as poll-workers.
This means that under the law, a person could be carrying arms inside the gym and still be more than 100 ft. away from the ballot box.
Since this is now a state law, there are different towns, courts, and law enforcement. In the town of Nowhere, Billy-Bob was arrested for carrying his gun inside the gym, even though he never approached closer than 110 ft of the box. In the town of Hasbeen, Jill O’Brien was arrested for standing outside the gym near the main entrance while carrying a slung rifle. Over in the town of Progessevil, Sally Smith was arrested as she went into the school office to provide paperwork for her kid, while carrying concealed.
The court in Nowhere found Billy-Bob guilty because the law obviously includes the actual gym. Likewise, the court in Hasbeen found Jill guilty because she was within 100 ft of the entrance of the polling place. Over in Progressevil Sally was also found guilty, even though she had to pass within 100 ft of the gym, she never entered, showed her firearm. It was only a Karen that knew Sally carried and called it in that day to get Sally stitched up.
All three people appeal.
Their appeal is heard by the Circuit Court. At the Circuit Court, 3 judges hear arguments regarding the merits of the case. They will not be hearing any new evidence. They might hear procedural questions, but for our example they are not.
At the Circuit court level, they issue an opinion after reading the briefings and arguments from all sides. The state argues that they were correct in finding these people guilty.
In the opinion, the Circuit court holds (important term) that the term “ballot box” actually means “polling place”. They also hold that the term “man” is inclusive of men, women, and children. They finally hold that the law does not restrict people moving past the polling place to other locations.
From these holdings, they dismiss the challenge from Billy-Bob and Jill O’Brien. They vacate the guilty verdict for Sally.
From this point forward, all the courts that are withing that circuit are required to follow those holdings.
Unfortunately, some wags decide that they are going to climb into the back of a pickup truck and drive past the polling place, armed to the teeth, and showing.
This time the cops are in a quandary. Do they arrest the assholes carrying arms to terrorize the people? They are coming within that 100ft radius, but they are just riding past. The sheriff says, “Do it” and they are arrested.
They are tried in court. Their lawyer brings up the circuit court opinion. When he does, he gives the name of the case, “Twp. Of Progressevil v. Smith, 234 F.3d 127, (12th Cir.1983)” This citation is unique. It references exactly one document. The court, and all the other lawyers, know it happened in their Circuit Court, so it is a controlling opinion.
In addition, they know when the case was decided, and they can do research to find out if the law has changed or any other cases have been decided that bear on this particular question.
It is the responsibility of each party involved with a court case to do their research to support their position. They are required to give the court these unique references. The court is then responsible for knowing the referenced case. Knowing if that case is still “good law”. Knowing if the position presented by the party matches what the court thinks the opinion actually means.
In some cases, (many?), the parties will both cite to the same opinion, using their interpretation of that opinion to support their position.
Thus, we have the state citing to Bruen saying that things such as:
There is a history of regulations from the late 1800s that support our law, “There is an ongoing debate … prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) at 2138
While the plaintiffs will say: It is clear that the proper time period is the founding era, 1791 through 1826,
The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—”intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819).—Id. at 2132
To ensure uniformity in the application of law, it is essential to uniformly apply ‘case law’ across jurisdictions. The judicial bodies must be capable of identifying each citation in a clear and concise manner. We should adhere to the procedure and ensure that we can locate our sources. We must take it one step further and ensure that we have links to the original documents.
One thought on “Why Citations Matter”
Well laid out and easy to understand it has been interesting to follow these reasonings across different cases and different courts
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