#25 Fall 1999

     Modern Racism
     Is There An Individual Right to Bear Arms?
     School Vouchers
     Gun Maker Liability
     Campaign Contributions Limits
     Rights of the Unpopular

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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:

Tami Lefko, a lawyer who specializes in intellectual property law, especially in issues 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 Law,

Steve Plafker, a retired deputy district attorney in Los Angeles and member of the Board of Directors of The Association for Objective Law.

Harry Binswanger moderated.

As announced in a handout distributed to all Lyceum attendees, three topics were discussed:

Jury nullification. 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?

Adverse 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?

Liability 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.


Steve Plafker 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

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the case. 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?

However, jury 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 of the law. We form a tiny minority holding very unconventional views. If law is left up to the private judgment of a group of people, 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?

Under the 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 different requirements.)

The reason 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.

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The adverse possessor gains title in a manner similar to John Locke's description of the way an individual gains ownership of previously unowned land: "As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property."3

Under the law of adverse possession, the same actions that gave the original owner his 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.


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.

These criminal 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 provoke revenge.

2. Harry Binswanger, "What is Objective Law?" The Intellectual Activist, January 1992, page 8.

3. John Locke, The Second Treatise of Government 32.

4. Id. 34

5. Ayn Rand, "The Property Status of Airwaves" in Capitalism: The Unknown Ideal, reprinted from The Objectivist Newsletter, April 1964.

6. The Intellectual Activist, Vol. 13, No. 9 (September 1999).

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Modern Racism

The State 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 States Government.

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 extended.

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.

Of particular 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 been

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decided in the Fifth Circuit where this case was brought. Other circuits have come to the opposite conclusion.

The complete 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."

School Vouchers

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 and 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 between property and free speech rights. They go together. Under the First Amendment, 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.

The Government seized President Nixon's papers, tapes, and photographs after his resignation 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).

The Government 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.

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Readers of this Bulletin will recall that the State of Texas used a similar argument in Michael Mazzone's IOLTA case. The State lost 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.