"In the sense of the law"


I was reading cases about statutory interpretation and the mischief (for my paper The Mischief Rule) and came across the greatest headnote ever:

When a person borrows a pistol for the purpose of joining in a chase for a bear, returning the pistol soon after the return from the chase, he is not guilty of going armed in the sense of the law.

Moorefield v. State, 73 Tenn. 348 (1880).

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  1. Speaka the English? WTF does that mean?

    1. Which words are incomprehensible to you? IANAL and I understood it.

  2. Is this an analogy? What is it analogous to? And what does, guilty of going armed, mean?

  3. Not sure why this is noteworthy. I understood it perfectly. It’s saying that he was not “armed” in the legal sense. I assume “armed” meant carrying a weapon to protect against (or shoot) people, not animals.

    1. Eh, I gave it a polite chuckle.

    2. But the guy was armed. Legal fictions are illegal.

  4. Nice coincidence. In the 1970s I sat on a jury trying the case of a guy caught in the act of breaking into a high-end gallery, which featured expensive American Indian Art. The guy had a pistol, a walkie-talkie, and a story. The story was that he and his accomplice carried pistols because they had spent the day before the break-in drinking, and in pursuit of a bear in an abandoned mine.

    His defense was that he was too drunk to have any intent whatsoever, let alone criminal intent. It almost worked. He got a jury with heavy drinkers on it, who proved sympathetic.

    What sunk him was that when the cops busted them in the act, they had a pickup with plywood panels on the sides of the bed, to increase capacity. A photograph showed the pickup backed up in front of the gallery, filled to overflowing, with piled loot towering above the top of the cab.

    It made you wonder how they could have done so much work if they had been as drunk as the defendant’s lawyer said. Then the prosecutor explained the pickup was being loaded for the 3rd time that night, with 2 previous loads already hauled out of the same gallery, and crammed into their rented condo. Guilty.

  5. I’ve been reading and enjoying your mischief rule paper (draft?) but I worry that it just pushed back the same questions one level. For instance, in the sex discrimination case it all turns on the level of generality with which you charachterize the mischief. If it’s generally the harms of sex-stereotyoing in job hiring then it does prohibit orientation discrimination. If it’s narrowly the hiring of women/men for jobs that are traditionally seen as gender inappropriate then no. Though it does provide a satisfying reason for not applying it in evidently silly ways (eg can’t fire a woman from groping the closest woman to themselves without asking because that will be themselves but you can a man).

    And the worry is that if you are just pushing back the same question of generality back a level you don’t really improve the situation merely move the same call into a context with less guidance than direct statutory interpratation.

    1. Discrimination laws violate reality, and the Ninth Amendment. No doubt, women can fight, piloting a drone. They are not going to fight if physical contact is involved. The lawyer is in denial of physical reality. If you hire a black man to manage your finances, and a Jewish guy for your professional basketball team, you deserve the consequences. The lawyer will start naming the great ones. However, he will not run out of fingers counting them. The obverse will have thousands of names.

      The American ethos is selfishness and greed. It should be sufficient to make sure the rare, capable people in the discriminated group will not be missed. The discrimination laws are lawyer rent seeking.

      It gets worse. Because of the lack of a physical injury, any settlement is taxed fully, without deductions for expenses or legal fees. The plaintiff may have to borrow money to pay the tax of that full amount. Any lawyer not discussing the tax implications of a settlement with a plaintiff should be disbarred, and sued for legal malpractice. No plaintiff will ever sue for discrimination after understanding the tax consequences. In addition, no plaintiff will ever work again, after suing an employer.

  6. Is it because they chased a bear, and thus the right to “bear arms” is implicated? Would the law distinguish a hypothetical where they chase a mountain lion?

  7. One wonders if the real question should revolve around the person’s sanity for grabbing a pistol against a bear. My understanding (perhaps wrong) is the pistol is much more likely to enrage the bear than kill it.

    1. My first thought was “I hope that was either a large pistol or a small bear”.

    2. The case is from Tennessee, where they only have black bears. The problem of enraging the bear arises with grizzly bears, which are larger and tougher. It also depends on what kind of pistol you have. Many pistols are indeed not very powerful, but a ,45 is effective even against a grizzly. There are quite a few reports of success, and I have known several people who spent a lot of time in grizzly country who carried a .45 for defense.

  8. I could be wrong but I believe that some statutes used the phrase “going armed” in situations where a person intended to do something illegal like intimidate others.

    1. Apparently in Tennessee a permit is required to carry a pisto and the offence is called “Going armed” There is apparently a long list of exceptions including :
      • Incident to lawful hunting, trapping, fishing, camping, sport shooting or other lawful activity;
      • By a person possessing a rifle or shotgun while engaged in the lawful protection of livestock from predatory animals;

  9. Exercising the right to arm bears?

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