#25 Fall 1999
l TAFOL PRESENTS
AT LYCEUM CONFERENCE
OF PARENTS FOR ACTIONS OF THEIR CHILDREN
l IN BRIEF
Is There An Individual
Right to Bear Arms?
Gun Maker Liability
Campaign Contributions Limits
Rights of the Unpopular
1999 Page 1
PANEL DISCUSSION AT LYCEUM CONFERENCE
Continuing a policy begun with a presentation at The Jefferson
School in 1989, The Association for Objective Law presented a panel
discussion at the 1999 Lyceum conference. The panel members were:
a lawyer who specializes in intellectual property law, especially
related to the Internet, with the firm
of Irell & Manella in Los Angeles,
Jim McCrory, a lawyer in Albuquerque, New Mexico with a limited
practice in real estate and oil and gas leasing, president and
member of the Board of Directors of The Association for Objective
Plafker, a retired deputy district attorney in Los Angeles
and member of the Board of Directors of The Association for Objective
Harry Binswanger moderated.
As announced in a handout distributed to all Lyceum attendees,
three topics were discussed:
Is a jury (or judge) ever justified in refusing to follow the
law? A yes answer violates the rule of law; the law
loses one of its crucial requirements:
predictability. On the other hand, what about unjust
laws: drug laws, laws against prostitution, anti-trust, the Internal
Revenue Code and so forth?
possession. Under certain circumstances, an
owner of land can lose his title because someone else occupies
the property. Can this apparent violation of property rights
be justified? If so, how?
of parents for actions of their children. A child
takes a gun into a school and murders as many of his
classmates as he can find. Would it be proper to send his
parents to jail for his action? Should the parents be required
to pay restitution? If the answer to either question were yes,
under what circumstances?
For each of the topics, a panelist summarized the law, and the
audience and panelists engaged in a lively discussion.
began by describing a famous historical example: the trial of
John Peter Zenger, who, in 1735, was tried on a charge
of seditious libel for some statements he had made critical of
public figures. His lawyer, Andrew Hamilton, sought to defend him
on the grounds that the statements were true---despite the fact
that, under the law at the time, truth was not a defense. In fact,
the opposite was
1999 Page 2
The saying was, "The greater the truth, the greater
the libel."1 Hamilton was successful; the jury acquitted Zenger.
This was an act of jury nullification, defined generally as the
power of a jury to ignore the facts or the law in coming to its
verdict. In a definition that Objectivists sometimes find attractive,
it is defined as the power of the jury to judge the law: i.e.,
to decide the case against an immoral law.
This issue raises two questions. Should the law allow jury nullification?
And, given the opportunity, should an Objectivist engage in the
act of civil disobedience by engaging in nullification?
Those in favor
of jury nullification generally have three kinds of argument.
First, the pure historical argument: the jury has
this power under the definition of the jury, taken from the English
common law and early American experience. In support of this argument,
the trial of William
Penn for blasphemy and the Zenger case are cited. The same cases
are used in the second argument: the jury's power to say no is
the last protection against tyranny. Finally, there is a sloppy
argument to the effect that this is part of a democracy.
A number of people in the audience were in favor of jury nullification.
They found it difficult for an Objectivist to stand by while an
injustice was perpetrated. How, for example, could one not take
the opportunity to prevent a businessman from being the victim
of anti-trust laws?
nullification is a violation of the rule of law. If
A "law" is a rule of social conduct enforced by the government.
And a "rule"
is something settled, codified, principled---not
some board's momentary consensus,
to be swept away in the next
wave of public opinion2,
then either may it be swept away by the consensus of twelve people
chosen on an ad hoc basis to apply it in a particular situation.
In particular, as Dr. Binswanger pointed out, an Objectivist
is in a particularly bad position to support ad hoc applications
the law. We form a tiny minority holding very unconventional
views. If law is left up to the private judgment of a group of
Objectivists will be among the first victims.
Jim McCrory began with a hypothetical example. Smith buys a farm
from Doe and lives on and works it for 20 years. Then, Jones shows
up and proves that Doe never owned the land. (Doe had given Smith
a fraudulent deed, which cannot transfer title; one cannot sell
what one does not own.) Who now owns the farm?
rule of adverse possession, Smith gets the farm. Adverse possession
is a common law rule that transfers title from
a titular owner to another who, for twenty years, is in possession
that is "open, notorious, continuous, hostile and adverse." (Many
states have passed statutes replacing the common law rule with
for the theory of adverse possession is the same as that of any
statute of limitations---to require people to be prompt
in asserting their rights. Delay results in evidence being lost,
witnesses moving away and memories
fading. The original English law of adverse possession, enacted
in 1540, had a 60 year period. The period was reduced to 20 years
in 1623. The rule is very old and well established.
1999 Page 3
possessor gains title in a manner similar to John Locke's description
of the way an individual gains ownership
unowned land: "As much land as a man tills, plants, improves,
cultivates, and can use the product of, so much is his property."3
law of adverse possession, the same actions that gave the original
title will divest his successors of it: “[God]
gave [land] to the use of the industrious and rational---and labor
was to be his title to it---not to the fancy or covetousness of
the quarrelsome and contentious.”4
As pointed out by Dr. Binswanger during the panel discussion,
this explains why nomadic tribes, such as certain American Indians,
acquired no title to land, but Pueblo Indians who had built houses
and farmed in the same location did get title---and have it today.
A good example of the application of the Lockean theory is the
Homestead Act of 1862, which gave title to persons who lived on
a tract of land and worked it for five years as set out by statute.5
And, for an interesting supermodern application, see the recent
article, Mars: Who Should Own It by Ronald Pisaturo.
LIABILITY OF PARENTS FOR ACTIONS OF THEIR CHILDREN
Tami Lefko summarized the law of parental liability for their
children's bad acts.
All fifty states hold parents civilly liable for actions of their
minor children. Thirty-eight states have criminal statutes punishing
parents for minors' acts. Typical of the latter is a Salt Lake
City ordinance that requires a parent to attend counseling when
a minor has committed a criminal act. If the parent refuses, the
parent will be guilty of a crime.
laws tend to require parents to exercise reasonable care over
their children, but they do not define the term. They
amount to strict liability criminal laws: that is, no intent to
do a bad act is required on the part of the
parent. It was noted that at the same time the law deprives
parents of autonomy to raise their children, it makes them more
liable for their children's acts. Most of the audience
agreed that holding parents civilly liable was appropriate.
The victim of a child's negligence should be compensated. On the
other hand, most, although not all, regarded criminal liability
for a parent as wrong. It punishes one person for the acts of another.
It was noted that it is not government's job to make good citizens
of us but rather to punish those who initiate force---those who
break laws. Holding parents liable is unnecessary since the laws
of accessories and accomplices make one liable for criminal acts
of others in appropriate situations.
References and Note:
1. This rule
was defended on the basis that a truthful criticism was more
likely than a false one to
Binswanger, "What is Objective Law?" The
Intellectual Activist, January 1992, page 8.
3. John Locke,
The Second Treatise of Government 32.
5. Ayn Rand, "The Property Status of Airwaves" in
Capitalism: The Unknown Ideal, reprinted from
The Objectivist Newsletter, April 1964.
Intellectual Activist, Vol. 13, No. 9
1999 Page 4
of Hawaii gives money to citizens who are "native
Hawaiians," defined as Hawaiians of Polynesian origin. The
Office of Hawaiian Affairs, the state agency that hands out the
money, may have only native Hawaiians as officers, and only native
Hawaiians may vote in statewide elections for these officers.
Harold Rice, a white man born in Hawaii, sued the State, claiming
the right to vote here based on race was a violation of the 14th
and 15th Amendments. The United States Justice Department filed
an amicus brief supporting the State. It argued that native Hawaiians
are like American Indians who get similar treatment from the United
Of course, special treatment for Indians violates the individualistic
basis of the American system of government. It does have some historical
support in that the tribes were treated as foreign governments.
No such argument can be made for any other group. Until all such
special treatment can be eliminated, it should be minimized, not
Argument was heard on October 6, 1999 before the United States
Supreme Court. There is no question how the Court should rule,
but the obvious sometimes escapes the justices.
Is There An Individual Right to Bear Arms?
Timothy Joe Emerson was indicted for a violation of a federal
law that prohibits possession of a firearm while under a restraining
order issued in a divorce case. This statute covers everyone one
who is subject to a court order that restrains one from threatening
an intimate partner.
Emerson's wife had filed for divorce in a Texas District Court.
Based on the wife's testimony that Emerson had threatened to kill
the man with whom she had been having an affair, the State court
issued a temporary restraining order. Neither the divorce court
nor any of the parties actually knew of the federal law preventing
firearm possession in this situation. A Federal District Court
dismissed the case. It held the prosecution unconstitutional under
the 5th Amendment due process clause on grounds that there was
no reasonable notice of the violation.
interest, the court also found there was a violation of the defendant's
Second Amendment right to bear arms. The central
issue was whether the Second Amendment recognizes an individual
right to bear arms or only a "collective right" regarding
arms with respect to militias mentioned in the Amendment. After
an extensive review of English and American history, the court
found that the Second Amendment recognizes an individual right
to bear arms. It held the statute "unconstitutional because
it allows a state court divorce proceeding, without particularized
findings of the threat of future violence, to automatically deprive
a citizen of his Second Amendment rights." This issue has
not been decided by the U. S. Supreme Court and had not previously
1999 Page 5
the Fifth Circuit where this case was brought.
Other circuits have come to the opposite conclusion.
text of the opinion can be seen in PDF format at <www.txnd.uscourts.gov> by clicking on "notable
cases" and then "United States of America v.
Timothy Joe Emerson."
The United States Supreme Court recently refused to hear two cases
concerning the constitutionality of the use of money from school
vouchers by religious schools. In both cases the lower courts had
held that the state must exclude religious schools from the use
of pubic money. The law in Maine prohibited the use of vouchers
in religious schools, and the Maine court upheld that law against
a challenge by parents claiming a right to equal treatment. The
issue remains undecided by the Supreme Court.
Gun Maker Liability
Some 28 cases
have been brought against gun manufacturers recently by cities
counties. Recently, an Ohio state trial court dismissed
one of these cases brought by the City of Cincinnati. The judge
had some interesting comments: "Only the legislature has the
power to engage in the type of regulation which is being sought
by the city here . . . He added that gun companies can't be held
responsible for the acts of criminals. To an assertion that guns
are like industrial pollution and therefore a public nuisance,
he said that "just doesn't apply to the design, manufacture
and distribution of a lawful product."
The city's attorneys say they will appeal.
Campaign Contributions Limits
On October 5, the United States Supreme Court heard argument in
the case of Nixon v. Shrink Missouri Government PAC. The case involves
a state limit on contributions of $1075 per donor. The Eighth Circuit
had struck down the Missouri limit in a 2 to 1 decision.
In 1976, the Supreme Court upheld limits of $1000 per donor in
federal elections.1 This is another case, which is simple
to anyone understanding the principles involved. There is no conflict
property and free speech rights. They go together. Under the First
there can be no limits on the ability of a person to use his property
to publicize his views.
1. Buckley v. Valeo, 424 U.S. 1 (1976)
Rights of the Unpopular
Since the time of George Washington, it has been the rule that
the president owns the papers and other materials he made during
his term of office.
seized President Nixon's papers, tapes, and photographs after
in 1974. Under the Fifth Amendment, Mr. Nixon
was entitled to be paid for this seizure: "just compensation" in
the language of the Constitution. Mr. Nixon's heirs have sued for
payment; they estimate the amount of this "just compensation" at
$35.5 million in 1974 dollars ($213 million today).
is resisting making any payment. It denies "that
the materials have any fair market value." It claims that
the heirs are entitled to nothing because of $21 million that the
taxpayers have paid to keep and index the materials.
1999 Page 6
this Bulletin will recall that the State of Texas used a similar
argument in Michael Mazzone's IOLTA case. The
the issue then, as should the Federal Government now.
Copyright © 1999
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.