Think Like a Lawyer …. Is a Bear a Dog? Is a Bee a Fish? Well then, what’s an Assault Rifle?

Today’s post is not a tax post. It’s an email I sent to some of my former business law students who I had the pleasure to teach 15+ years ago at the American University of Sharjah and at the American University in Dubai, in the United Arab Emirates. I am in regular contact with many of these wonderful men and women to this day.

According to the Washington Post: “Mass shootings [in the United States] … have averaged more than one per day so far this year. Not a single week in 2022 has passed without at least four mass shootings.”  Given the tragic very recent shootings in America, some serious thought is underway.

Here you go:

OK, who remembers in business law my explanation that when you think like a lawyer, you have to think a certain way.  I kept repeating a certain phrase so you could remember how to do this:

“Is a bear a dog for purposes of the statute?”

I used an example – A man brought a bear on a leash into the subway/metro.  The law prohibited anyone from bringing a dog into the subway/metro. The question was whether the man violated the statute and could be fined.  We phrased the legal issue this way –

In teaching you how to analyze that question we looked at what the lawyer for the defendant (the man with the bear) would say?  He would argue that clearly the statute was not violated. A bear is not a dog.  His client should not be fined.  However, the State prosecutor would go beyond the mere words of the statute to win the case.  He would ask what the purpose of the statute was. Why was it enacted in the first place?  We did this in class. Some of you gave very good answers. For example, the law was there to keep people safe, to prevent people panicking who are fearful of animals/dogs , to keep the subway/metro clean & hygienic and so on!

Using this analysis should the man be fined for bringing a bear into the subway? Do we stick with the plain language of the statute and say a bear is not a dog…??   A real live court looked at this issue in California and determined that a bee was a fish for purposes of protection laws under the state’s endangered species act! And.. yes, a bee was a fish for purposes of the law and could be protected.

Real law in motion in real life!

How open or closed to this line of thinking will different courts across the country be when it comes to the volatile topic of gun control?  In California, a fish is a bee…. and an assault rifle? Does the Second Amendment right to bear arms include the right to own one?

Miss you all – Prof V


For those wanting to learn more about the Constitutional issues involved in gun control, this New York Times opinion/guest essay, here, is excellent.  Written by two of the clerks for Supreme Court Justices in the landmark case of District of Columbia v. Heller decided in 2008, the op/ed has this to say:

“Heller does not totally disable government from passing laws that seek to prevent the kind of atrocities we saw in Uvalde, Texas. And we believe that politicians on both sides of the aisle have (intentionally or not) misconstrued Heller. Some progressives, for example, have blamed the Second Amendment, Heller or the Supreme Court for mass shootings. And some conservatives have justified contested policy positions merely by pointing to Heller, as if the opinion resolved the issues. Neither is fair. Rather, we think it’s clear that every member of the court on which we clerked joined an opinion, either majority or dissent, that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.” (emphasis mine).

Posted June 9, 2022

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