McDonald v. Chicago - Oral arguments today

Update: Analysis: 2d Amendment extension likely (from SCOTUSBlog)

This is troubling, though:

The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge. [emphasis mine]

Why is that relevant? Or, to echo a point Mr. Gura made at one time, the SCOTUS should be concerning itself with what the Constitution means, not whether it’s a good idea to follow it.

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Just a reminder, oral arguments in McDonald v. Chicago are at 10:00 today. Apparently, SCOTUS has decided they will not release the audio, but the transcript should be available later today.

Rights versus Convenience

NPR ran a story this morning about a case being argued before the U.S. Supreme Court today. This case revisits a SCOTUS decision last year.

Until last year, prosecutors in all but 10 states could introduce a notarized affidavit from crime lab experts, attesting to their findings with respect to critical evidence. This document was sufficient to state that, for example, the white powder found on a defendant was indeed cocaine, or that a defendant's DNA matched that found on a rape or murder victim. Forensic analysts only appeared if subpoenaed by the defense.

But in June, the U.S. Supreme Court ruled by a 5-to-4 vote that the clause of the Constitution that requires the accused to be confronted by the witnesses against him puts the burden on the state to produce not just paper certificates, but live forensic witnesses, who can be cross-examined. Without these live forensic witnesses, the court decided, forensic evidence cannot be introduced.

The opinion ended up putting actual practice somewhere in the middle - prosecutors must send a notice to the defense that they intend to to introduce an affidavit. The defense can then object to the affidavit being introduced without the witness appearing. If the defendant does not enter an objection, the affidavit is considered sufficient without the witness. This shifts the burden back onto the defendant, but greatly simplifies it by not requiring them to actually go through the more complex process of issuing a subpoena.

Here's the part that concerns me:

Nevertheless, four justices were outraged by the decision, predicting that it would result in a windfall for the defense, huge expense for the states and the release of guilty defendants.

Why do they want to restrict the Rights of the accused based on the expense to the states? Shouldn't a person's Right to face the witnesses against them trump any consideration of convenience and cost-savings of the government? The same government that's prosecuting them?

Only one thing has changed since June. One member of that five-justice majority — David Souter — has retired, and been replaced by Sotomayor. Prosecutors hope that having been a criminal prosecutor herself in New York, Sotomayor will be sympathetic to their cause.

This is why SCOTUS appointments are so important. One Justice can cause a complete reversal of a previous decision. One Justice can tilt the balance of power from the people to the government. One Justice can make the difference in whether you can effectively exercise your rights or not.

Let's not forget that Heller was a 5-4 decision, too.

Some 24 states are asking the court to reverse itself as well, citing backlogs, costs and other problems they say the decision has created.

Again, backlogs, costs, or "other problems" do not matter in the face of a Constitutionally Enumerated Right intended to protect the people from an overzealous or abusive government. Frankly, the decision didn't go far enough - the entire burden should be on the prosecution, and the defendant should not have to do anything for the witness against him to appear at trial.

Random Discovery

It's been a while, hasn't it?

Tonight, while doing a little internet research for responding to a comment in the Roanoke Times editorial blog, I discovered something interesting. I can't quite decide if it's amusing or disturbing that this law is still on the books in Massachusetts.

PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGSIN [sic] CRIMINAL CASES

TITLE I. CRIMES AND PUNISHMENTS

CHAPTER 272. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER

Chapter 272: Section 36. Blasphemy

Section 36. Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

You know, if anyone actually got charged with this, it would get thrown out on 1st Amendment grounds so fast you'd hear the sonic boom in Alaska.

Something we tend to forget

Atom Smasher over at Men are Not Potatoes mentions something that tends to get forgotten in the 2nd Amendment debate.

"I think the Framers would have been far more comfortable with the locals having an Abrams and a Mark 19 and an F-22 than with the government having one. Hell - they didn't even want a standing army, let alone one that could run roughshod over the citizenry." [emphasis mine]

That's important to remember when someone throws out the old "it only applies to the militia" argument. The founders did not want a standing army. This is mentioned in many of the constitutions of the original 13 states. For example, Section I, Article 13 of the Virginia Constitution:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [emphasis mine]

The founders had a deep distrust of standing armies, and they didn't want one - they wanted a militia made up of ordinary citizens, that could organize into an army if a war occurred, because they knew it a militia made up of the people could not be easily turned against the people.

So why would they restrict the right to keep and bear arms to a select few in a standing military?

(On another note, Men Are Not Potatoes has been added to my blogroll. Welcome!)

The official White House policy

We all saw this coming a while ago, but it's the official White House policy now.

Address Gun Violence in Cities: Obama and Biden [...] support closing the gun show loophole and making guns in this country childproof. They also support making the expired federal Assault Weapons Ban permanent. [Emphasis mine.]

(Scroll down to "Crime and Law Enforcement" in the linked page for the full paragraph.)

Be afraid, and be prepared.

(via a comment at Snowflakes in Hell)

Rights? What rights?

This is why we must not submit to licensing a Constitutionally protected right! Or any Right, for that matter.

On the whole Plaxico Burress mess.

Xavier has a post up with his take on Plaxico Burress. While I agree that Plaxico is a complete idiot, and a thug, I have to disagree with the overall thrust of the post, which seems to be that we should let him hang (figuratively) for what he did, and that he should not be allowed to use the Heller decision to challenge the law he's being charged under. I urge you to read his post, and my comment, which I'm also posting here because it sums up my position fairly well.

I'm afraid I have to disagree with you on this one, Xavier. If you believe the law he broke is unconstitutional, then his motivation, knowledge, intent, recklessness, stupidity, and arrogance should all be irrelevant. He has the same right to challenge the law on Constitutional grounds as anyone else. His money simply gives him a better ability to do so, and his fame is what brought it to our attention. Right or not, that is the way it is.

Heller does apply, not because it applies to him, or to the situation, but because it applies to the law that he is being charged under. If New York's law equates to a de facto ban on handguns, it is unconstitutional under Heller, and a persons reasons and intent are irrelevant. Even if he was carrying it so that he could go kill someone later, he still should be able to challenge the law in question. An unconstitutional law should be challenged at every possible opportunity.

Is Plaxico Burress an ideal person to be doing this? No. Is he one of us? Heck no. Should he be charged with other crimes? Yes, he should be charged with criminal negligence, reckless endangerment, making false statements to police, and (if it's in New York's laws) carrying a firearm while intoxicated. He's an idiot, and it's only blind luck that no on else was injured or killed.

You said "If he decided to go, he did not need to carry a gun." Since when is need supposed to be a requirement to exercise one's Second Amendment rights? Since when is the lack of ability to hire bodyguards, or the lack of "other options" supposed to be a requirement to exercise one's Second Amendment rights?

It is not about "bend[ing] the law unjust when the man who caught the winning touchdown in the 2008 Super Bowl violates it" or for getting him "preferential treatment in a court of law." It's about striking down an unconstitutional law. To paraphrase your own conclusion, "The Constitution is simply the Constitution, and it applies to New York City."

*Please note that the "stupidity" label for this post is for Plaxico Burress's stupidity, not Xavier. I have nothing but respect for Xavier, and I don't think he's stupid, or even being stupid in his post.

An Profound Insight

From Robb at Sharp As A Marble.

Each time you allow your representatives to tack on more and more "regulations", you limit your freedom more and more. Each time you vote to increase the power of the government, even when you think that particular increase is beneficial, it will never go away and always be added on to, generally by people who you didn't want to have that power in the first place.

People who try to understand the U.S. Constitution tend to forget that the government under that constitution was not our first government. The founding fathers wanted the weakest government they could get away with, because they didn't trust government. The first U.S. government, under the Articles of Confederation, was so weak it couldn't do what was needed. There's a reason the Constitution is designed to limit the power of the government.

The founders knew even then that government, when not heavily restricted, will eventually grow beyond necessity and into tyranny. It is the nature of the beast, and that is why the Constitution and the Bill of Rights were written to limit the powers of the Federal government.

Jury Nullification

Wandering around the web, I stumbled on this thread on jury nullification at Patterico's Pontifications. The best comment on the subject I found there is this one. In part:

Jury nullification is the reason for juries in the first place. Absent that power, there is no reason whatever to involve nonspecialists in evaluating evidence and applying the law.
[...]
The reason juries exist, and are supposed to be made up of the “peers” — social equals — of the defendant, is that the jury has the power to say, “Yes, this was a violation of the law, but the law is an ass in this case. Turn ‘im loose!”
[...]
A jury that cannot nullify is not a jury. It is a panel of incompetent lawyers. Eliminate that power and you have eliminated the guarantee that the jury system offers the accused.

The important part here is "in this case." Jury nullification in one case does not affect any other case - past, present, or (for the most part) future. It applies only to the specific case the jury is deciding. Unlike a circuit court (or higher) decision, it is not binding on any other case, anywhere - even in the same court the next day. The law remains as it was.

It can also be a great tool if the legislature is not paying attention to the people. If enough prosecutions under a bad law are victims of jury nullification, there's a good chance the prosecutors will stop bringing charges under that particular law, because it looks bad if they lose (and that is where it can affect future cases).

Having said all that, there is another important point that needs to be made. Jury nullification is a tool that should be used both sparingly and carefully. It has been used for good (when juries would refuse to convict conductors on the underground railroad) and evil (when juries would refuse to convict klansmen for murders). It still has that potential today, and likely always will.

Note: I know this was an old thread, but I got inspired, and just couldn't leave the subject alone.

A Missed Point About Heller

I never got around to posting an analysis of DC v. Heller. There have been so many others on the web who have, and have done a better job than I probably could, that I just didn't do it. (And I succumbed to a bit of Heller "burnout" reading so many of them.) But there's one point I've noticed missing from most of those otherwise excellent blog posts. I've mentioned it in a couple of comments, but haven't really seen it anywhere, so here it is:

Heller will eventually lead to a ruling that a state may prohibit either open carry or concealed carry, but not both.

There are two key passages:

As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

and:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

DC v. Heller, 554 U. S. ____ (2008), p. 56-57, (PDF p. 59-60)

Heller dealt only with carrying firearms within one's home. However, by so inextricably joining the 2nd Amendment to the right to self-defense, the Court has left the door wide open to a future ruling that some form of carry (open or concealed) must be allowed outside the home as well. This follows from the simple fact that a person's right to self defense does not end when he leaves his home. There is ample case law supporting an individual's right to self defense, and most of it deals with situations where the individual in question is not at his home or place of business.

From this it is simple. If I have the right to self defense outside my home, and that right is "central to the Second Amendment right," then a law restricting my Second Amendment right only to my home cannot be constitutional. I have that right in any place that I have the right to self defense.

DC v. Heller - First Impressions

Not done reading it yet, but I am done for today. I prefer to hold my comments until I've read the whole thing, and this one is 60+ pages for the majority opinion, and 157 pages total!

Preliminary opinion, based on the syllabus, what I've read so far, and what I've seen on other blogs? More good than bad: it established the 2nd Amendment as protecting an individual right, which is very important, and gives lower courts a good starting point. On the other hand, it does not rule out licensing and/or registration. On the gripping hand, for jurisdictions that do require licensing and/or registration, it seems to say that only shall-issue would be constitutional.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

District of Columbia, et al. v. Heller, Slip Op., p. 64 ( p. 67 of the PDF) (emphasis added)

Additionally, while the majority does not specifically address the scrutiny issue, footnote 27 is promising because it outright rejects rational basis scrutiny.

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Heller, Slip Op., Footnote 27, p. 56, 57 (p. 59, 60 of the PDF)

While footnotes are considered dicta, footnotes in a Supreme Court majority opinion are often considered more binding than circuit court decisions, and are usually given more weight by lower courts than the dissenting opinion in the same case.

Well, that's more than I planned on getting into tonight. More later this weekend!

Heller Affirmed!

The Supreme Court affirmed the D.C. Circuit Court's decision in Heller.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

DC v. Heller, Syllabus, Available here.

More after work.

SCOTUS Watch

No Heller today. Should be tomorrow.

They also ruled the death penalty unconstitutional for child-rape. My initial opinion is strongly opposed to that ruling, but I haven't read it for details yet. It appears to have been a 5-4 vote split right across conservative/liberal lines. I'm disappointed, but not surprised. I'll probably do a more detailed post about this one later.

Welcome to Soviet Washington, DC. Your travel papers please.

This is being covered by several blogs, but I had to put my two cents in anyway.

This is how tyranny begins. Small infringements on rights are made to sound reasonable, due to circumstances at the time. The tyrants-to-be build on people's fears, and propose 'solutions' that may or may not work to fix the problem, using fear to get people to consent to give up rights and freedoms. Then another fear comes along, and the tyrants-to-be do it all over again. This time it's easy to go a little farther, to infringe peoples rights even more, because people are used to the last infringement. It's normal to them now. So a bigger infringement is seen as being not much, because it's not a lot more than what people are used to. And people are afraid, and willing, because it might fix the cause of their fear. (This works even better if the previous infringement even appears to have worked.) Eventually, you have tyranny.

How does this apply to DC? First you have the intermittent checkpoints they're creating now. Checking peoples ID for their addresses and, if they don't live in the neighborhood, making them give a 'legitimate purpose' to enter. Once people get used to that, and start thinking it's 'normal' and 'legitimate,' they'll say "We're seeing results, but it's not as effective as it could be. There's still a crime problem." The next step will be to make the checkpoint permanent. Then once people are used to that, they'll add more. Then they'll say "It worked in this neighborhood, we're going to do it in other 'high crime' areas." Other cities will start, because "it worked in Washington." Eventually, we'll need to state a 'legitimate purpose' when you try to cross state or even county lines, and to enter cities. Then you'll have to state a 'legitimate purpose,' and get government approval, before you travel. Travel papers. Just like Nazi Germany or the Soviet Union.

If anyone thinks this is far-fetched, that it could never go that far in America, look at gun control for an example. Washington DC is a good place to start. First they started restricting some guns. They restricted when and who could carry guns away from home. Who could carry concealed. Soon, very few could own a handgun. Eventually, the laws became so pervasive that they dictate what you can do with a gun inside your own home. Today, carrying a functional gun from one room to another in your own home is illegal in DC.

Look at gun control in Canada. In Great Britain. In Australia. The American Colonies of the British Empire. (Wait, that last one didn't really take, did it?)

Look at Nazi Germany. Soviet Russia. They started with small infringements, or infringing the rights of unpopular groups. Then more, bits and pieces at a time. Eventually, they fell into tyranny.

If we do not stop this today, if we allow these small, popular infringements to continue, they will build into tyranny. It may take ten, fifty, or one hundred years, but it will happen.

Unless it is stopped today.

Thoughts On the Second Amendment and the Bill of Rights

Note: This is only my reasoned opinion, as an average citizen. I am not an attorney. Do not take this as legal advice. If you do, you will probably be arrested, since the courts and the government do not seem to agree with me. You have been warned.

Something recently struck me about the Second Amendment. It actually contains the boldest and most powerful statement of protection of any of the ten amendments that are the Bill of Rights. The phrase "shall not be infringed" is clear, concise, and says that not even the slightest restriction or regulation is to be tolerated. Think of this: an infraction is "the act or an instance of infringing" and an infraction is the smallest violation of law possible. Driving 20 in a 15mph zone is defined as an infraction. Nobody counts an infraction as a crime. But the Second Amendment is the only part of the Bill of Rights that says a right "shall not be infringed."

Read all ten. You can find them here.

The First Amendment? It says "Congress shall make no law [...] abridging [...]" the rights listed. The founders did not say that the states could not do so. The First Amendment specifies congress, which, the way the Constitution was written and interpreted at the time, meant that it did not apply to the states.

The Third Amendment does not specify a right, but while it does limit a government action, it also limits that restriction. "[...] in time of war, [...] in a manner prescribed by law."

The Fourth Amendment limits it's right, using the words "unreasonable" and "probable cause." If the government has reason, or probable cause, they can search and seize and arrest with impunity.

The Fifth Amendment enumerates several restrictions on the government, but, except for the restrictions against double-jeopardy and self-incrimination, each of them has exceptions. Even self-incrimination is questionable - a comma instead of a semicolon places it grammatically within the effect of the "due process" exception. And nowhere does it specify these as "rights," though they are understood as such.

The Sixth Amendment says "the accused shall enjoy" the rights listed. Nowhere does it say that these rights shall not be regulated.

The Seventh Amendment simply extends the right of trial by jury to civil cases. The amendment itself restricts this right to matters over twenty dollars (a ridiculously small amount, by today's standards, but significant at the time).

The Eighth Amendment, while restricting the government, again never uses the word "right," and is written in subjective terms ("excessive," and "cruel and unusual") which are argued regularly in front of the Supreme Court.

The Ninth Amendment simply protects rights that are not specifically stated in the Constitution, and the Tenth Amendment says that anything not addressed in the Constitution is reserved to the states or the people.

Nowhere in the Bill of Rights is a right protected as fiercely, and as specifically, as in the operative clause of the Second Amendment. "The right of the people to keep and bear arms shall not be infringed." It specifies that this is a right, that it belongs to the people, and that it shall not be infringed. It allows no restriction, no regulation, and no debate. It does not limit this prohibition to the Federal government - it is a blanket statement. What does this mean?

It means that no gun control law passed by the federal government is constitutional.
Because it is a blanket statement, it means that the power to regulate or restrict guns is prohibited to the states, as well as to the federal government.
It means that no gun control law passed by a state government is constitutional.
It means that no government can tell you that you can't carry your gun concealed, or into a business that serves alcohol, or onto school property. Your rights apply everywhere.
It means that the government cannot restrict the type or number of guns that you can purchase.

It means that, while the government cannot restrict or regulate who can have guns, what kind of guns you can have, or where you can carry your guns, it can bring charges against you based on your actions.
If I fire my gun into the air, I can and should be charged with reckless endangerment. I have recklessly done something which could injure or kill someone. If I throw a knife in the air in a crowd, it could also injure or kill someone, and I can and should be charged with reckless endangerment. A bullet travels farther than I can see, so no crowd is needed to make it reckless and dangerous.
If I shoot and kill someone, and it was not done in defense of myself, my property, or someone else, that is murder. It is still murder if I kill them with a knife, or a bat, or my bare hands.
If I point my gun at someone to frighten them into giving me money, I have committed robbery, and should be punished accordingly. It is still robbery if I used a knife, or a bat.

No gun control law is constitutional. The wording of the Second Amendment is absolute and unyielding. Unfortunately, no court in this nation recognizes that fact today.

"A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed." U.S. Constitution, Amendment 2