OK, I gotta weigh in. At first blush, it seems incredible the President, the Attorney General, and the Homeland Security Director have or had not "read the Arizona law" You know the one. The one which says that local state law enforcement can enforce a state law which makes it a crime to be an illegal alien in the State of Arizona.
Now, do any of you really believe the above high ranking federal officials had not read the Arizona law when asked if they had?. Of course not. They read it. They, in a calculated stance said they had not. Now why would they do that?. Well, it seems to me the clear and unambiguous reading of the law makes several factors clear as day. First, cops cannot ask a person about their status on the basis of race. Second, cops cannot ask about their status unless there is at least a constitutional basis for the persons detention concerning a possible violation of an unrelated law. By constitutional basis I mean at least "reasonable suspicion" the person has or is about to violate a law. Period. A suspected illegal alien cannot be detained solely to inquire about their status in this country. There has to be another legal basis for the detention or arrest. In fact, a careful reading of the Arizona law makes it clear the law enforcement contact cannot even begin as consensual to then ask about their legal status in the country.
So, back to why all these federal officials say they have not read the law. Well, it seems clear to me that had they admitted to having read Arizona's law would place them in a position to defend their broad and sweeping statements the law encourages profiling. So why say they haven't read it?. It is because they cannot defend their position in logic. They cannot win a debate on the issue. They will be forced to admit the law does not do any of the evil crap they say it does.
The main stream media is no better, and they will not ask these officials why, in the face of the clear language of the statute they say what they have said. Instead, it has become a lie told often enough, may Americans believe it. Don't you believe for a second they didn't read the statute. They have, they just cannot defend their position if they admit they know what the law says.
Now, is it constitutional?. Well, it should be. It does not violate any federal statute. In fact, it mirrors the federal statute at issue. And, the Supreme Court long ago found it constitutional for a state to pass immigration laws. What will happen is any ones guess. The supremacy clause is not the real issue and the feds know it. We won't know how it will end until the Supreme Court rules and the local federal trial and appeals court decisions mean little on the way up.
The bottom line is any lawyer, hell any non lawyer, can read the Arizona alien statute and come away with the same conclusion. It does not allow a detention unless there is a lawful independent reason for a detention. Read it yourself..... just don't say you haven't to avoid a debate in the issue...like many of our "leaders" have done.
Friday, July 16, 2010
FUNDAMENTAL RIGHT, by God
McDonald v. Chicago. In deed, it is hundreds of pages long. And, it represents the very first time the U.S. Supreme Court has ever directly ruled on whether the Second Amendment applies to the states.
If you have looked at some of my prior posts, you will notice I talked about how the Bill of Rights and its various provisions, affect the individual states. The short version is that after some decades of battles, the court decided only those Amendments which are "implicit in the concept or ordered liberty" apply to the states. Never before McDonald has the court directly addressed this issue. But a few weeks ago it did. The court held that the right to keep and bear arms is a fundamental right. The states may still regulate firearms as long as their laws do not infringe on the right to keep and bear arms.
McDonald, while historic in nature, is somewhat limited. It concerns the right to be armed in your home without a local law telling you it is illegal. As far as it goes, it strikes down state and local laws that directly or indirectly outlaw a person from having a handgun in their home. That is all it says. It does not say states and local governments cannot pass regulations as to the carrying of a gun, the type of ammo you put in it, etc. In fact, the city of Chicago reacted to McDonald by immediately passing a law that says you have to have a friggin' permit from them to step out out in your own yard with your gun! The NRA immediately filed a lawsuit.
It will be interesting to watch. I predict a lot of litigation yet to come. The funny thing is, the states and locals may loose. You see, government can infringe on a basic or fundamental right if they can show a compelling reason. Hell, I don't think they can even show a rational basis for the laws. The facts are clear. Where gun ownership and carry is restricted, crime goes up. When people are relatively unrestricted in the carrying of weapons, violent crime goes down.
One by one, the state and local gun laws will fall. It may take a decade, but it will happen. So, it looks like McDonald v Chicago will be viewed as a landmark gun rights case, and maybe the most important decision in this area in a century. Lock and Load!
If you have looked at some of my prior posts, you will notice I talked about how the Bill of Rights and its various provisions, affect the individual states. The short version is that after some decades of battles, the court decided only those Amendments which are "implicit in the concept or ordered liberty" apply to the states. Never before McDonald has the court directly addressed this issue. But a few weeks ago it did. The court held that the right to keep and bear arms is a fundamental right. The states may still regulate firearms as long as their laws do not infringe on the right to keep and bear arms.
McDonald, while historic in nature, is somewhat limited. It concerns the right to be armed in your home without a local law telling you it is illegal. As far as it goes, it strikes down state and local laws that directly or indirectly outlaw a person from having a handgun in their home. That is all it says. It does not say states and local governments cannot pass regulations as to the carrying of a gun, the type of ammo you put in it, etc. In fact, the city of Chicago reacted to McDonald by immediately passing a law that says you have to have a friggin' permit from them to step out out in your own yard with your gun! The NRA immediately filed a lawsuit.
It will be interesting to watch. I predict a lot of litigation yet to come. The funny thing is, the states and locals may loose. You see, government can infringe on a basic or fundamental right if they can show a compelling reason. Hell, I don't think they can even show a rational basis for the laws. The facts are clear. Where gun ownership and carry is restricted, crime goes up. When people are relatively unrestricted in the carrying of weapons, violent crime goes down.
One by one, the state and local gun laws will fall. It may take a decade, but it will happen. So, it looks like McDonald v Chicago will be viewed as a landmark gun rights case, and maybe the most important decision in this area in a century. Lock and Load!
Monday, February 8, 2010
Honest Officer, It Was Self Defense!!!
Besides the tried and true defense to a crime of "some other dude did it" (SODDI), the most often used defense to a crime involving assault behavior is self defense. It is the oldest defense on the books. As long as man has been around, he has enjoyed the right of self defense. All societies have recognized the right and nations now consider self defense to be their right, even to the point of a preemptive strike. In other words, if a country is reasonably sure another country or, these days, group is about to attack, they have the right to strike first and defend their action as self defense. Think of it as a defense of necessity. The defense of self allows force to be used to prevent a greater harm, namely unlawful harm to you.
As a general rule, however, people do not have the right to a preemptive strike, irrespective of how strong the evidence is they are about to be attacked. Self defense as a defense to a criminal prosecution for a crime requires the attack on the person be imminent. Must be happening right this second!. And, using a term nations use, the force used in self defense must be proportional to the level of force used in the attack. An attempted slap in the face does not allow you to whip out your machine pistol and cut them down with a hail of bullets in mid swing. I know, they were stupid and brought a fist to a gun fight and deserve to die.....can't do it and if you do, you are going to prison.
If, however, an attacker uses deadly force upon you, you may use deadly force upon them in self defense providing that" 1) your subjective perception was that that level of force in self defense was needed and 2) the act and amount of force was objectively reasonable. So here's the deal, the local neighbor kid is outside in your driveway and he is unbolting your mag wheels from your car. Tempting is it may be, you can not just gun him down to prevent the theft of your mags. On the other hand, a person is entitled to use reasonable force in the protection of their personal property. What level of force is allowed turns on the facts. What is clear is deadly force may never be used solely to protect property,
Now, people (and law students) sometimes get confused in the distinction between defense of property and the defense of habitation. If someone breaks into your home while you are there, the common law allowed the use of deadly force to protect habitation. A persons home was his castle and highly protected under the law. Over time, the law has been modified by case law where it has had the affect of requiring the homeowner to be able to prove, not just that someone broke in to their home while they were there, but also that they were in "reasonable fear of their life". So much has this enraged homeowners charged with murder or manslaughter after they killed a burglar, that many states have enacted "castle laws" These statues say, simply, that there exists a legal presumption the person who broke into your home while you are there IS a threat to your personal safety. This presumption allows the existence of this "fact" be recognized by the court and the jury absent evidence to the contrary. These laws are good things and they make the safety and privacy of a persons home important issues and standards worthy of continued legal protection.
So really, self defense, defense of others and the defense of habitation are all first cousins of each other and as old as time. Just remember, you may defend yourself against an attack but that attack must be happening right now and the force you use must be reasonable and in proportion to the force used or attempted to be used against you. Oh..... and don't just drag the body inside, you will get caught faking the evidence...don't you all watch CSI?
As a general rule, however, people do not have the right to a preemptive strike, irrespective of how strong the evidence is they are about to be attacked. Self defense as a defense to a criminal prosecution for a crime requires the attack on the person be imminent. Must be happening right this second!. And, using a term nations use, the force used in self defense must be proportional to the level of force used in the attack. An attempted slap in the face does not allow you to whip out your machine pistol and cut them down with a hail of bullets in mid swing. I know, they were stupid and brought a fist to a gun fight and deserve to die.....can't do it and if you do, you are going to prison.
If, however, an attacker uses deadly force upon you, you may use deadly force upon them in self defense providing that" 1) your subjective perception was that that level of force in self defense was needed and 2) the act and amount of force was objectively reasonable. So here's the deal, the local neighbor kid is outside in your driveway and he is unbolting your mag wheels from your car. Tempting is it may be, you can not just gun him down to prevent the theft of your mags. On the other hand, a person is entitled to use reasonable force in the protection of their personal property. What level of force is allowed turns on the facts. What is clear is deadly force may never be used solely to protect property,
Now, people (and law students) sometimes get confused in the distinction between defense of property and the defense of habitation. If someone breaks into your home while you are there, the common law allowed the use of deadly force to protect habitation. A persons home was his castle and highly protected under the law. Over time, the law has been modified by case law where it has had the affect of requiring the homeowner to be able to prove, not just that someone broke in to their home while they were there, but also that they were in "reasonable fear of their life". So much has this enraged homeowners charged with murder or manslaughter after they killed a burglar, that many states have enacted "castle laws" These statues say, simply, that there exists a legal presumption the person who broke into your home while you are there IS a threat to your personal safety. This presumption allows the existence of this "fact" be recognized by the court and the jury absent evidence to the contrary. These laws are good things and they make the safety and privacy of a persons home important issues and standards worthy of continued legal protection.
So really, self defense, defense of others and the defense of habitation are all first cousins of each other and as old as time. Just remember, you may defend yourself against an attack but that attack must be happening right now and the force you use must be reasonable and in proportion to the force used or attempted to be used against you. Oh..... and don't just drag the body inside, you will get caught faking the evidence...don't you all watch CSI?
Monday, December 21, 2009
MURDER! ....she said
Murder...the most sincere form of criticism. As old as time. They say we are all able to do it, given the right set of circumstances. Some do it for sport, some because they are just nuts. Murder happens in every culture, and murderers are from every possible way of life. Tiger Woods wife thought about it recently, but figured out 300 million is better than a prison cell. Some never think about the punishment, they are "natural born killers"
My first year class will start studying homicide in a week or two and so it got me thinking about the area again. You see, no one is ever guilty of HOMICIDE. Homicide is not a crime. Homicide is the killing of a human being by another human being....Perfectly fine activity much of the time. It is the goal in war. It is the goal as punishment for crime. It is even the goal to protect yourself and your family. Homicide is good.
Murder, well, that is something else. Murder is the killing of a human being by another human being, with "malice aforethought".....What the hell is malice aforethought?. We all know what aforethought it...it is simply thinking about something before you act...so, what is malice? Malice is simply an evil thought, based on a wrong purpose. It is the legally required state of mind to convict someone of murder. Malice does not mean hatred or ill will. You do not have to hate someone to be found to have malice. And, there are lots of ways to prove malice.
When you actually intend to kill and commit an act designed to take a human life, that is a malicious intent.....and the crime of murder is the result. But malice for the crime of murder can also be shown by implication. For example, if you hit a person in the head with an iron pipe, you may not have actually intended to kill them, but you performed an act with an intent to cause a great injury. If the person dies, then the malice is implied. A "reckless and wanton disregard for human life"
If you drive your car into a crowd at a street party and 60 MPH, you may not actually intend to kill anyone, but your conduct is so reckless then the malice for the crime of murder may be implied by your actions. So it is murder if someone dies.
My favorite murder theory is what is called the 'Felony Murder Rule". Boy, do liberals hate this one. OMG!. Consider this. A couple of hundred years ago when the rule was formed in England, it went like this: If you commit a felony, ANY FELONY, and someone dies, even accidentally, they YOU are guilty of murder. The theory is the mental state, the "mens rea" necessary to commit the felony is transferred to the death, and the law construes the intent to commit the felony as an intent to kill...MURDER!... And, it did not matter what felony, in fact, since almost any crime was punishable by death in those days, it was kinda of a simple mental jump to make a rule that we kill you too.
The rule is still around in almost every state. It has been modified over the years and many if not most states now require the predicate felony to be one that is a dangerous felony...something like armed robbery. So today, in California, if you stick up a store and the owner has a heart attack and dies.....murder! she wrote. Now when you couple this felony murder rule with accomplice liability and conspiratorial liability, well hell, everybody gets a murder rap.
Lets say your half wit brother in law asks you to drive the car to the 7-11 so he can go in and rob the place. Your not much brighter than your brother in law, so for some reason you agree. Here you are, fat, dumb, and reasonably happy sitting in the getaway car, engine running while he goes in to rob the place. Now, brother in law has a real gun, but to make sure no one gets hurt, he takes the magazine out and shows you" see, no bullets" so you say OK, you'll do it.
So you drive up and brother in law, lets call him "Halftrack" (since half his brain jumped the rails). Halftrack gets out, goes into the store and points this gun at the clerk. Halftrack, generally unable to do anything right, accidentally drops his gun. Well, Halftrack forgot there was still one round in the barrel, and the gun falls on the hammer and accidentally goes off. The bullet hits the ceiling and bounces off hitting the clerk in the head and he dies. "CRAP" Halftrack yells!, and runs from the store. He tells you this as you speed away. Of course the surveillance cameras capture all of it and the cops actually beat you home. You are charged with robbery. You see, as a person who aided and assisted the principle (Halftrack) you are an accomplice. Also, you are also a co-conspirator since you assisted by agreeing to commit a crime with Halftrack, you are just as guilty of robbery as Halftrack is under the law......But here is the kicker. You are also charged with First Degree Murder!. Hell, you never went into the store, don't have a gun...nothin'.... But, under the felony murder rule, Halftrack is also charged with murder since he was committing a dangerous felony and there was a death. And you helped, so you get the same charge. Since the felony was a robbery, in most states, that makes the charge first degree murder.....And now you learn that, in your state, a murder during a robbery can bring the death penalty!!!!..... and all you did was drive Halftrack to the store.
That's how it works...like it or hate it. People who assist others to commit crimes and are actually present at the scene get the same charge under accomplice law. Those who agree to commit a crime and do something to further the objective are also guilty of the crime...and that is the case even if the co-conspirator is home watching "Dancing with the Stars" when it goes down. Here, the brother in law, you, are actually the wheel man. Your gonna fry! Murder is the most sincere form of criticism.
More on murder and accomplice liability later.....
My first year class will start studying homicide in a week or two and so it got me thinking about the area again. You see, no one is ever guilty of HOMICIDE. Homicide is not a crime. Homicide is the killing of a human being by another human being....Perfectly fine activity much of the time. It is the goal in war. It is the goal as punishment for crime. It is even the goal to protect yourself and your family. Homicide is good.
Murder, well, that is something else. Murder is the killing of a human being by another human being, with "malice aforethought".....What the hell is malice aforethought?. We all know what aforethought it...it is simply thinking about something before you act...so, what is malice? Malice is simply an evil thought, based on a wrong purpose. It is the legally required state of mind to convict someone of murder. Malice does not mean hatred or ill will. You do not have to hate someone to be found to have malice. And, there are lots of ways to prove malice.
When you actually intend to kill and commit an act designed to take a human life, that is a malicious intent.....and the crime of murder is the result. But malice for the crime of murder can also be shown by implication. For example, if you hit a person in the head with an iron pipe, you may not have actually intended to kill them, but you performed an act with an intent to cause a great injury. If the person dies, then the malice is implied. A "reckless and wanton disregard for human life"
If you drive your car into a crowd at a street party and 60 MPH, you may not actually intend to kill anyone, but your conduct is so reckless then the malice for the crime of murder may be implied by your actions. So it is murder if someone dies.
My favorite murder theory is what is called the 'Felony Murder Rule". Boy, do liberals hate this one. OMG!. Consider this. A couple of hundred years ago when the rule was formed in England, it went like this: If you commit a felony, ANY FELONY, and someone dies, even accidentally, they YOU are guilty of murder. The theory is the mental state, the "mens rea" necessary to commit the felony is transferred to the death, and the law construes the intent to commit the felony as an intent to kill...MURDER!... And, it did not matter what felony, in fact, since almost any crime was punishable by death in those days, it was kinda of a simple mental jump to make a rule that we kill you too.
The rule is still around in almost every state. It has been modified over the years and many if not most states now require the predicate felony to be one that is a dangerous felony...something like armed robbery. So today, in California, if you stick up a store and the owner has a heart attack and dies.....murder! she wrote. Now when you couple this felony murder rule with accomplice liability and conspiratorial liability, well hell, everybody gets a murder rap.
Lets say your half wit brother in law asks you to drive the car to the 7-11 so he can go in and rob the place. Your not much brighter than your brother in law, so for some reason you agree. Here you are, fat, dumb, and reasonably happy sitting in the getaway car, engine running while he goes in to rob the place. Now, brother in law has a real gun, but to make sure no one gets hurt, he takes the magazine out and shows you" see, no bullets" so you say OK, you'll do it.
So you drive up and brother in law, lets call him "Halftrack" (since half his brain jumped the rails). Halftrack gets out, goes into the store and points this gun at the clerk. Halftrack, generally unable to do anything right, accidentally drops his gun. Well, Halftrack forgot there was still one round in the barrel, and the gun falls on the hammer and accidentally goes off. The bullet hits the ceiling and bounces off hitting the clerk in the head and he dies. "CRAP" Halftrack yells!, and runs from the store. He tells you this as you speed away. Of course the surveillance cameras capture all of it and the cops actually beat you home. You are charged with robbery. You see, as a person who aided and assisted the principle (Halftrack) you are an accomplice. Also, you are also a co-conspirator since you assisted by agreeing to commit a crime with Halftrack, you are just as guilty of robbery as Halftrack is under the law......But here is the kicker. You are also charged with First Degree Murder!. Hell, you never went into the store, don't have a gun...nothin'.... But, under the felony murder rule, Halftrack is also charged with murder since he was committing a dangerous felony and there was a death. And you helped, so you get the same charge. Since the felony was a robbery, in most states, that makes the charge first degree murder.....And now you learn that, in your state, a murder during a robbery can bring the death penalty!!!!..... and all you did was drive Halftrack to the store.
That's how it works...like it or hate it. People who assist others to commit crimes and are actually present at the scene get the same charge under accomplice law. Those who agree to commit a crime and do something to further the objective are also guilty of the crime...and that is the case even if the co-conspirator is home watching "Dancing with the Stars" when it goes down. Here, the brother in law, you, are actually the wheel man. Your gonna fry! Murder is the most sincere form of criticism.
More on murder and accomplice liability later.....
Thursday, December 10, 2009
Law School, Part II
I first wrote about law school in the early posts on this blog and maybe it is time to revisit the issue. I have noticed a distinct change in law students over the years, and this year seems to be representative of those changes. I am finding the first year students to be very engaged in the school process and much more inclined to work together in study groups. They seem to be doing it "by the numbers" also. By that I mean they are spending a good deal of time in the horn book rather than using study outlines like Gilberts. These are all good changes. I am impressed also at the level of actual legal insight and more so than in past years.
As I have said, law school is guided self learning. A law student gets out of law school exactly what she or he puts into it. Law Professors like myself try to guide this self learning process by explaining the difficult legal issues, and allowing the students to come up with the correct answers. Most do....some do not. While most who are admitted to a law school have the ability to be successful, some do not have the self discipline or drive to make it through. The failure rate for law school is ultimately about 75% historically. In my opinion, it is really about 25% based on actual ability, and the remainder fail because they choose to.
You see, law school changes the way law students think. They become more abstract. More analytical. They loose the luxury of being comfortable jumping to conclusions. With the possible exception of medicine, I know of no other professional process which does this. Some are simply uncomfortable with this and they choose to move on. That's fine. It is their choice.
But, things are changing. I have noticed a number of CPA's, teachers, engineers, and even a couple of PhD's and MD's in my classes. Many are there for a professional career change, some are their just looking for an intellectual challenge. Whatever their reason, overall, law students seem better equipped to handle the material and I foresee the failure rates to drop.....And that is a very good thing. ...... P.S. Merry Christmas to all.
As I have said, law school is guided self learning. A law student gets out of law school exactly what she or he puts into it. Law Professors like myself try to guide this self learning process by explaining the difficult legal issues, and allowing the students to come up with the correct answers. Most do....some do not. While most who are admitted to a law school have the ability to be successful, some do not have the self discipline or drive to make it through. The failure rate for law school is ultimately about 75% historically. In my opinion, it is really about 25% based on actual ability, and the remainder fail because they choose to.
You see, law school changes the way law students think. They become more abstract. More analytical. They loose the luxury of being comfortable jumping to conclusions. With the possible exception of medicine, I know of no other professional process which does this. Some are simply uncomfortable with this and they choose to move on. That's fine. It is their choice.
But, things are changing. I have noticed a number of CPA's, teachers, engineers, and even a couple of PhD's and MD's in my classes. Many are there for a professional career change, some are their just looking for an intellectual challenge. Whatever their reason, overall, law students seem better equipped to handle the material and I foresee the failure rates to drop.....And that is a very good thing. ...... P.S. Merry Christmas to all.
Wednesday, October 28, 2009
Sixth Amendment - New Rules
The Supreme Court must just hate law students. I figure they rule on cases just to complicate their lives. Well, I got news for them....they make law professors lives more complicated too. Sometimes U.S. Supreme court cases get headlines and sometimes they just slide by without much notice. Such was the case in May of this year in Montejo v Louisiana. Simply, the facts are this: Montejo was arrested for murder and, as required in that state, appeared before a judge within the first three days after his arrest. While he said nothing, the court appointed a free lawyer. The next day or so, the cops again approached him and asked him (after is Miranda warnings, including his waiver of an attorney being present) to show them where he threw the gun. The great guy he was, he said OK and did so.
Now for over twenty years as a result of the case of Jackson v Michigan, the rule was that once a "critical stage of the proceeding" has begun, like arraignment, and counsel appointed, the cops were done...finished...nada...CANT ASK THE BAD GUY ANYTHING ABOUT THIS CRIME...unless of course his lawyer says it is OK and is there (right, like that's gonna happen).
Now, in a 5 to 4 decision, the court overruled Jackson and allow the cops to contact the represented defendant and, if he waives his right to counsel, interview him about the case he has already gone to court on!. Now, the last thing anyone would ever call me was a liberal...But this decision causes me some concerns.
So, I guess every defense attorney better tell his criminal case client to not waive his right to a lawyer even well into defending him because it appears the cops can contact the represented defendant and ask him or her to forget about that lawyer and talk to them, and if they agree, the statement is admissible But here us where it gets interesting
The American Bar Association and the California Bar Association rules of ethics state that an attorney "shall not" have communication with a represented party. So, what if one of the detectives or investigators is also a lawyer?...... Don't laugh, there are more cops that are also attorneys than you might think. Now, the cop cannot do his job because to do so would violate the rules of ethics....How about this? The Sheriff or Chief of Police is a lawyer?...and his deputies or officers are his "agents"...Now the Chief or Sheriff is in trouble if his cops (as his agents) contact a represented party. Same dilemma exists for investigators who work for the DA.
So, aside from making life complicated for law students and law professors, the Supreme Court also made life for attorney cops and attorney law enforcement chief officers a bit more professionally dangerous
So, I am sure the cops are celebrating the decision in Montejo, but I see a bunch of litigation as a fall out of this decision and what were pretty clear rules, now less clear.
Now for over twenty years as a result of the case of Jackson v Michigan, the rule was that once a "critical stage of the proceeding" has begun, like arraignment, and counsel appointed, the cops were done...finished...nada...CANT ASK THE BAD GUY ANYTHING ABOUT THIS CRIME...unless of course his lawyer says it is OK and is there (right, like that's gonna happen).
Now, in a 5 to 4 decision, the court overruled Jackson and allow the cops to contact the represented defendant and, if he waives his right to counsel, interview him about the case he has already gone to court on!. Now, the last thing anyone would ever call me was a liberal...But this decision causes me some concerns.
So, I guess every defense attorney better tell his criminal case client to not waive his right to a lawyer even well into defending him because it appears the cops can contact the represented defendant and ask him or her to forget about that lawyer and talk to them, and if they agree, the statement is admissible But here us where it gets interesting
The American Bar Association and the California Bar Association rules of ethics state that an attorney "shall not" have communication with a represented party. So, what if one of the detectives or investigators is also a lawyer?...... Don't laugh, there are more cops that are also attorneys than you might think. Now, the cop cannot do his job because to do so would violate the rules of ethics....How about this? The Sheriff or Chief of Police is a lawyer?...and his deputies or officers are his "agents"...Now the Chief or Sheriff is in trouble if his cops (as his agents) contact a represented party. Same dilemma exists for investigators who work for the DA.
So, aside from making life complicated for law students and law professors, the Supreme Court also made life for attorney cops and attorney law enforcement chief officers a bit more professionally dangerous
So, I am sure the cops are celebrating the decision in Montejo, but I see a bunch of litigation as a fall out of this decision and what were pretty clear rules, now less clear.
Thursday, October 1, 2009
The Right to Keep and Bear Arms
This session, the U.S. Supreme Court will consider a case which may be the next "shoe to drop" after the Heller decision. As many have said, Heller is significant for both what was affirmed in the ruling and what was not. What was not said was a statement regarding whether the second amendment is a fundamental right. Better said, whether the states can be limited in their legislation on firearm related restrictions.
Heller said the right to own a handgun is a personal right of every person, but allowed that states can make "reasonable restrictions" related to gun ownership, carry, and related issues. So, in reality, Heller said states cannot ban handguns or handgun ownership. That said, how far can states go in restricting the carry and use of handguns was largely left undecided. Many big cities and states have rather extensive restrictions related to guns, so much so, many would argue it is the same as a ban as applied.
Now, I am conflicted....I am a fan of states rights and generally believe the federal government should stay the hell out of our lives. So, under that premise, I should be supporting the rights of the states to legislate in this area. Well, I am...kinda. But, where a right is fundamental, as I believe the founders meant the second amendment to be, then the states scope of legislation cannot be used to undermine the general intent of the right. So is the case in other fundamental rights like speech, assembly, protection against unreasonable searches and seizures, and any act which infringes on the equal protection and the due process of law.
So cities and states which, in application, so restrict the personal right to possess a gun are or should be unconstitutional IF, and it is a really big "IF", the second amendment and its protections are deemed fundamental. You see, states my not infringe on a fundamental constitutional right unless they can show a compelling governmental reason. A very high burden. If the rights and protections of the second amendment are not classified as a fundamental right, then states (and cities) can legislate in this area by just showing a rational basis for the law. And here, the states may still be in trouble.
It is largely uncontested that in every major city or jurisdiction where there has been a functional ban on handgun ownership, violent crime and specifically gun related violent crime has increased dramatically. Australia banned gun ownership and saw an incredible increase in gun related violent crime. The simple fact is, gun control does not work. It makes certain people feel better, but it has no affect but to prevent law abiding people from defending themselves. So, it may well be that government cannot even show a rational basis for restricting guns.
So, will the Supreme Court adopt the second amendment as a fundamental right, and in doing so, cause most state and local gun laws to be deemed unconstitutional? Who knows. It could be said if the Supreme Court was going to go that far, they had every opportunity to do so in Heller. Did the court simply want to see how the lower courts and the states handled the ruling before deciding the big question? Maybe, since the court does not like to go farther than needed on issues. The bottom line is gun ownership is not going to end irrespective of what the court decided. Gun confiscation is not going to work. There are not enough troops to accomplish this in any amount of time. It would take the first airborne division a year just to get through Berry Creek where every approach to a house would result in a fire fight. And, frankly, the local police and the military are not inclined to cooperate in such a plan anyway.
As crime creeps up and the people feel less secure in their lives and their futures, the wind of change may very well spell it is time for a pronouncement on this issue from the court. The second amendment is not about hunting or sport shooting. It is about tyranny . It is about protecting us against those who would take away our constitutional rights, and never before has it been as important as it is right now. It will be an interesting year in constitutional law.
Heller said the right to own a handgun is a personal right of every person, but allowed that states can make "reasonable restrictions" related to gun ownership, carry, and related issues. So, in reality, Heller said states cannot ban handguns or handgun ownership. That said, how far can states go in restricting the carry and use of handguns was largely left undecided. Many big cities and states have rather extensive restrictions related to guns, so much so, many would argue it is the same as a ban as applied.
Now, I am conflicted....I am a fan of states rights and generally believe the federal government should stay the hell out of our lives. So, under that premise, I should be supporting the rights of the states to legislate in this area. Well, I am...kinda. But, where a right is fundamental, as I believe the founders meant the second amendment to be, then the states scope of legislation cannot be used to undermine the general intent of the right. So is the case in other fundamental rights like speech, assembly, protection against unreasonable searches and seizures, and any act which infringes on the equal protection and the due process of law.
So cities and states which, in application, so restrict the personal right to possess a gun are or should be unconstitutional IF, and it is a really big "IF", the second amendment and its protections are deemed fundamental. You see, states my not infringe on a fundamental constitutional right unless they can show a compelling governmental reason. A very high burden. If the rights and protections of the second amendment are not classified as a fundamental right, then states (and cities) can legislate in this area by just showing a rational basis for the law. And here, the states may still be in trouble.
It is largely uncontested that in every major city or jurisdiction where there has been a functional ban on handgun ownership, violent crime and specifically gun related violent crime has increased dramatically. Australia banned gun ownership and saw an incredible increase in gun related violent crime. The simple fact is, gun control does not work. It makes certain people feel better, but it has no affect but to prevent law abiding people from defending themselves. So, it may well be that government cannot even show a rational basis for restricting guns.
So, will the Supreme Court adopt the second amendment as a fundamental right, and in doing so, cause most state and local gun laws to be deemed unconstitutional? Who knows. It could be said if the Supreme Court was going to go that far, they had every opportunity to do so in Heller. Did the court simply want to see how the lower courts and the states handled the ruling before deciding the big question? Maybe, since the court does not like to go farther than needed on issues. The bottom line is gun ownership is not going to end irrespective of what the court decided. Gun confiscation is not going to work. There are not enough troops to accomplish this in any amount of time. It would take the first airborne division a year just to get through Berry Creek where every approach to a house would result in a fire fight. And, frankly, the local police and the military are not inclined to cooperate in such a plan anyway.
As crime creeps up and the people feel less secure in their lives and their futures, the wind of change may very well spell it is time for a pronouncement on this issue from the court. The second amendment is not about hunting or sport shooting. It is about tyranny . It is about protecting us against those who would take away our constitutional rights, and never before has it been as important as it is right now. It will be an interesting year in constitutional law.
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