Posted on 05/08/2007 10:05:16 AM PDT by ozoneliar
In the Parker case, a 2-1 majority of the D.C. Circuit found that the DC city council's prohibition on handguns, and its ban on using any firearm for lawful self-defense, were violations of the Second Amendment. Today, the full Circuit denied the DC government's petition for a rehearing en banc.
The decision states: "Appellees' petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and appellees' Fed. R. App. P. 28(j) letter, it is ORDERED that the petition be denied."
A footnote to the order states: "Circuit Judges Randolph, Rogers, Tatel, and Garland would grant the petition for rehearing en banc." The following is the list of judges who voted on the petition, with affirmtive votes marked by an asterisk: "Ginsburg (Chief Judge), Sentelle, Henderson, Randolph,* Rogers,* Tatel,* Garland,* Brown, Griffith, and Kavanaugh."
The guarantee of the right to keep and bear arms. The court was not any more specific than that.
"... and what would its relevance to the trial of Miller and Layton be?"
If some NFA requirement infringed on the right to keep and bear arms, and if Miller and Layton were charged with violating that requirement, then those particular charges would be unconstitutional.
"Please answer my question as to whether Sonzinsky establishes that a tax on each of your postings to FreeRepublic would be perfectly acceptable despite the First Amendment."
A tax on my FR postings? Such a tax would not be a federal revenue measure. It would be a poorly disguised attempt at violating my freedom of speech.
No, the Miller decision applies to whatever NFA requirement violates the second amendment. Any criminal charges based on violating that particular NFA requirement would be unconstitutional.
Those charges against Miller and Layton would be dropped. That does not mean the second amendment protects an individual right, any more than it means it only protects the right of white males with criminal records.
Keep in mind the nature of the case presented to the U.S. Supreme Court. The case was not whether Miller and Layton had the right to keep and bear arms. The case was, "Does Section 11 of the NFA violate the second amendment?"
The tax stamp was a separate issue. That was ruled constitutional. I don't understand why you continue to argue that the tax stamp violates the second amendment. That was never even brought up by anyone, anytime, anywhere.
An impartial judge should have informed an impartial jury something like, "The U.S. Constitution guarantees the right to keep and bear arms. - Congress has the power to tax them, but the right shall not be infringed."
The judge would be totally in line [constitutionally] to say that Miller and Layton have the right to keep and bear Militia-type weapons, or ~any~ type of weapons, -- as the U.S. Constitution does not say that certain types can be prohibited.
The prosecution is free to argue the Congressional position, - that the second amendment right only extends to Miltia-type weapons in possession by Militia members.
The defense if free to argue for individual rights, and that Congress has infringed on our 2nd.
The jury is free to decide.
Sounds like a good way for a lawyer to get disbarred.
Why do you ~want~ judges to have the power to disbar lawyers who defend clients using constitutional arguments?
You're suggesting that the District Court judge is going to allow presentation to the jury of the same arguments that were addressed to the Miller Court and allow the jury to RULE differently.
Indeed I am. - Juries have a right to take it upon themselves to judge both, "and to determine the law as well as the fact in controversy".
Assuming that the defense objects to such a procedure, and a conviction results, what do you think are the chances that the Supreme Court will set aside the verdict and authorize a new trial?
Why should such arguments before juries have an affect on the appeal process?
Do you think the Supreme Court will just look the other way while a judge allows a jury to dictate law?
Dictate law? -- The jury has a right to "determine the law as well as the fact in controversy".
Even an acquittal could be in jeopardy if the judge permitted the jury to decide the law other than was decided by the Supreme Court.
The USSC does not "decide law". They issue opinions on whether laws are constitutional.
If the judge intentionally permitted the jury to decide the law, it might constitute a sham trial which is one of the ways in which double jeopardy can be defeated.
Juries don't "decide law", they find guilt or innocence in only the case at hand.
Please provide an example of any judge, in any court in the US, allowing a jury to decide law in opposition to a Supreme Court decision.
In 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury.
Chief Justice John Jay said: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision." (emphasis added) "...you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".
As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))
Even the Supreme Court of Florida found out that US Supreme Court decisions are the supreme law of the land. If the Supreme Court of Florida can't override the US Supreme Court, it would be naive to think that a District Court Judge would instruct a jury that they do have that power.
The power of jury nullification is real and acts as a check against runaway courts and runaway legislatures.
Yep, that's my point. -- And defense attorneys should be allowed to argue both the facts - and the law, before juries.
But you mustn't expect those courts to submit willingly to that check against their power.
I expect courts to uphold the Constitution and to submit willingly to that check against their power.
I have never heard of a case where jury instructions were a matter contested before a jury. My understanding is that the instructions are worked out ahead of time, outside the hearing of the jury, and are READ to the jury. Even questions about their instructions that a jury raises during deliberations are addressed by the adversarial process outside the hearing of a jury, and a decision is made as to how to address the question. I can't remember the details of the case or the question, but a trial jury recently did ask for clarification of their instructions. The decision reached by the judge, after consultation with prosecution and defense, was that the judge could offer no clarification that would address the jury's question. As I recall, this was a case of the jury having to decide the meaning of a particular part of the law. This was because the law itself was silent on that particular matter and there were no binding precedents that would allow the judge to make the decision for the jury.
You agree that jury nullification is real and acts as a check against runaway courts and runaway legislatures; why do you argue against it?
The District Court Judge in Miller would have an obligation to instruct the jury consistent with the Second Amendment, NFA 34, AND the Supreme Court's guidance. He would not be obligated to permit the issues to be re-argued.
The District Court Judge in Miller had a Constitutional obligation to inform the jury consistent with the Sixth and Second Amendments, NFA 34, AND the Supreme Court's guidance.
He would be obligated to permit the issues to be outlined so that both jury & defendants are "informed of the nature and cause of the accusation;".
And what is the nature of that protection as it relates to Miller, Layton, and their short-barreled shotgun?
Really? How would it not be a general revenue measure if it applied to every individual in every state? Looks to me like it would raise quite a bit of revenue.
If the First Amendment was repealed, would that make a difference?
How were you able to make a distinction between a protected right in the First Amendment and a protected right in the Second Amendment? What is the distinction that makes the NFA 34 a "federal revenue measure" and my proposed internet posting tax something else? What is the test that a court will use to distinguish these taxes, one being allowed and the other being outside the powers of Congress?
You are absolutely mistaken about this.
The case was most certainly, "whether Miller and Layton have a protected right to keep and bear their short-barreled shotgun which prevents their prosecution under NFA 34".
Please cite any other Supreme Court case or court decision of any kind which had a scope which was other than directed at the specific case before the court. There is a reason that it is called "the Miller decision". It was all about whether NFA 34 could be applied to Miller and Layton. Application of the decision to anybody OTHER THAN MILLER AND LAYTON requires one to understand in detail how the decision came about. One would have to compare the circumstance of any other case to the specifics of Miller and Layton to understand how to apply the Miller decision to that case.
But what one can count on to a certainty is that the decision had a direct application to the case before the Supreme Court. No part of the decision is irrelevant to Miller and Layton. Any such content would be inappropriate. That is why the Supreme Court did not talk in generalities regarding various weapons. They specifically addressed the short-barreled shotgun in the case of Miller and Layton. They did not address machine guns at all.
That's just nonsense. Even you recognize that a tax stamp measure aimed at exercising free speech is not justified under Sonzinsky. The fact that Sonzinsky established that Congress does not need a specific power in order to levy a revenue tax does not establish that Congress may violate the protections of the Bill of Rights.
Even the cite in Miller points out that the claim that NFA 34 usurps a police power of the states is untenable. That is the only reason given for inclusion of Sonzinsky in the case. In no way does Congress have the power to destroy the Bill of Rights through taxation.
They drag you down to their level and then beat you with experience.
L
That's interesting. Thanks.
I certainly don't claim to be an expert in this area. I would not hesitate to vote in accordance with the Constitution were I on a jury deciding a case involving arms. Given what you have posted I would feel more comfortable guiding other jurors.
If a judge were to instruct a jury as you, or we, would wish, and a conviction results, such a conviction could be overturned by higher courts until a lower court finally agrees with the higher court.
In the case of an acquittal, the bar is very high to set aside the acquittal. As long as the judge is attempting to obtain a just verdict at all, the acquittal will no doubt stand.
Judge Roy Moore (I think that is his name) had one idea of what the law was regarding monuments in court houses, which idea did not agree with higher courts. I don't think he is a judge anymore.
The problem seems to be that either expectation for how to instruct a jury ought to result in the same outcome. It is only different when serious disagreements exist in our nation regarding what the law should be.
Perhaps I just haven't given enough thought to how the alternative expectation would work out. One of my favorite movies is "Judgement at Nuremberg", which points out that judges and juries do have duties beyond just blindly enforcing the law.
Hey. Are there four of us reading this thread?
Check out the above link for the awesome responsibility of a fully informed juror.
L
How about providing a brief summary of what this was. I am not aware of circumstances that would lead to a jury trial before the Supreme Court. Was it the court of original jurisdiction? I'm not aware of this happening in my lifetime. Maybe I haven't been paying enough attention.
Second amendment protection? To Miller and Layton? They were the ones charged under the law. If the law (or portions of it) is unconstitutional, the charges would have to be dismissed.
Their short-barreled shotgun? Since the second amendment only protects Militia-type weapons, it is necessary to determine if the weapon qualifies.
That wasn't your question.
"What is the distinction that makes the NFA 34 a "federal revenue measure" and my proposed internet posting tax something else?"
If the law is that unclear, maybe the U.S. Supreme Court should decide if the constitution is being violated. That's their job, isn't it?
There are three of us reading nonsense like - the second amendment only protects Militia-type weapons.
Miller and Layton were the ones charged, yes. But the District Court "sustained the demurrer and quashed the indictment".
The case before the U.S. Supreme Court was to determine if the NFA was a revenue measure AND if the NFA violated the second amendment. At the time the U.S. Supreme Court heard the case, Miller and Layton were free men with no charges against them. Miller took off for parts unknown.
"It was all about whether NFA 34 could be applied to Miller and Layton."
No. It was all about whether the NFA violated the second amendment.
"But what one can count on to a certainty is that the decision had a direct application to the case before the Supreme Court."
Of course. A direct application to Miller and Layton and an indirect application to anyone else charged under the NFA.
"That is why the Supreme Court did not talk in generalities regarding various weapons. They specifically addressed the short-barreled shotgun in the case of Miller and Layton. They did not address machine guns at all."
The U.S. Supreme Court opinion did not only apply to short-barreled shotguns or to all short-barreled shotguns. The opinion implied that the second amendment guarantees the right to keep and bear only those weapons that have some reasonable relationship to the preservation or efficiency of a well regulated militia.
Plus, it's quite possible that Miller and Layton's jury might agree that the second amendment does indeed protect "shart-barreled shotguns" since they are useful to a Militia, but it doesn't protect their particular sawed-off, double-barreled shotgun.
Correct. Now, who said that the tax stamp violated the second amendment? Not Sonzinsky. Not Miller's defense. Not the demurrer. Not the District Court judge. Not the U.S. Supreme Court.
As a matter of fact, Sonzinsky said the tax was indeed a revenue measure and, as such, constitutional. And Sonzinsky was not only about a tax, but about the NFA tax which involved a second amendment issue.
It's no wonder the U.S. Supreme Court dismissed this in one paragraph. What more is there to say?
"In no way does Congress have the power to destroy the Bill of Rights through taxation."
Or any part of the U.S. Constitution, correct? The U.S. Supreme Court ruled the NFA tax constitutional. They made no exceptions for the first amendment or the second amendment or any amendment.
From:
Draft Comment #02 on the Proposed Criminal Jury Instructions
Address:http://www.constitution.org/jury/pj/comment02crim.htm
Within six years after the constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the constitution.
That trial took place at February term, 1794, in State v. Brailsford, 3 Dall. 1, which was an action at law by the state of Georgia against Brailsford and others, British subjects. The pleadings, as appears by the files of this court, were as follows: The declaration was in assumpsit, for money had and received; the defendants pleaded non assumpsit, and 'put themselves upon the country'; and the replication was, 'and the said state of Georgia also putteth herself upon the country.' The action, as the report shows, was brought to recover moneys received by the defendants upon a bond of a citizen of Georgia to them, to which the state of Georgia claimed title under an act of confiscation passed by that state in 1782, during the Revolutionary War, under circumstances which were agreed to be as stated in the suit in equity between the same parties, reported in 2 Dall. 402, 415. After the case had been argued for four days to the court and jury, Chief Justice Jay, on February 7, 1794, as the report states, 'delivered the following charge':
'This cause has been regarded as of great importance, and doubtless it is so. It has accordingly been treated by the counsel with great learning, diligence, and ability; and on your part, it has been heard with particular attention. It is therefore unnecessary for me to follow the investigation over the extensive field into which it has been carried. You are now, if ever you can be, completely possessed of the merits of the cause.
'The facts comprehended in the case are agreed. The only point that remains is to settle what is the law of the land arising from those facts; and, on that point, it is proper that the opinion of the court should be given.
It is fortunate on the present, as it must be on every, occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment, and we have experienced no difficulty in uniting in the charge which it is my province to deliver.'
The chief justice, after stating the opinion of the court in favor of the defendants upon the questions of law, proceeded as follows:
'It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law.
But still both objects are lawfully within your power of decision.'
Then, after telling the jury that they should not be influenced by a consideration of the comparative situations and means of the parties, he concluded the charge thus: 'Go, then, gentlemen, from the bar, without any impressions of favor or prejudice for the one party or the other. Weigh well the merits of the case, and do on this, as you ought to do on every, occasion, equal and impartial justice.' The jury, after coming into court, and requesting and receiving further explanations of the questions of law, returned a verdict for the defendants, without going again from the bar. 3 Dall. 3-5.
The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old rule that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction,' the jury 'have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.'
The court at that time consisted of Chief Justice Jay and Justices Cushing, Wilson, Blair, Iredell, and Paterson, all of whom, as appears by its records, except Justice Iredell, were present at the trial.
There are three of us reading nonsense like - the second amendment only protects Militia-type weapons; - or that unobtainable 'tax stamps' on machine guns are not confiscatory/prohibitions in reality.
L
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