Posted on 05/16/2002 3:05:12 AM PDT by LibertyRocks
It may not seem like the same thing to you, but actually it is. The meaning of the 2nd Amendment is clear from reading not only the Constitution, but numerous other writings that elaborate upon the intent. The fact that some people deliberately choose to ignore this is irrelevant, and doesn't make the ordinances any less unconstitutional than the old Jim Crow laws.
Stare decisis.
You got me this time.
"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)
Well, fortunately for us Americans, a bunch of farmers did just that back in the late 1700's.
I didn't say it was new.
But, it is not part of current jurisprudence for juries to make judgements on the law. They judge facts in light of the law.
This is certainly a point of contention among even those of a libertarian persuasion. Some argue that the Constituion is supposed to be applied directly to the states and cite the 2nd Amendment as an example. In their minds, any state law that somehow infringes upon the right to keep and bear arms is clearly unconstitutional. However, many of them will also turn around and argue that state laws permitting abortion should be considered constitutional, despite the fact that the 14th Amendment prohibits states from passing laws that deprive life without due process.
This would seem to be more of a First Amendment case; a person is being prohibited from referring to the Constitution. But we would then have to address the issue of whether or not the 1st Amendment was written with the states in mind. The language seems clear enough when it says, "Congress shall make no law...abridging the freedom of speech."
Many people hold the position that the 14th Amendment applied the Bill of Rights directly to the States, though I fail to see that exact language. The 14th Amendment essentially re-stated what had already been said in the 5th Amendment, but since the "ratification" of the 14th Amendment the general assumption has been that the Bill of Rights is now suddenly applicable to the states.
As I mentioned before, I am a staunch constitutionalist. I am also a firm believer in states' rights. In short, I'm not entirely 100% sure what my position is on this particular issue. And that's rare!
Yes. If I dont' agree with the law, I can't be impartial, can I?
In your mind you can only be impartial when you agree with the law. That is not impartial either. At least you made it abundantly clear that you stand with the STATE and stand against the people.
And you'd lie to do it, wouldn't you?
I doubt it. Not that this will matter to a statist like you but nonetheless, when a court process works towards seating a biased jury the court process has initiated force, so to speak. Thus, should a potential juror chose to lie about agreement with the law it is an act of defense on behalf of the defendant.
You don't "choose" to get on a jury;you're chosen. And if you lie to get on a jury, you have an agenda, and you're not impartial.
If it's an agenda the agenda is to ensure that the defendant in fact does get an impartial jury. No doubt you hate that.
You are right about one thing. When it comes to honest/equal justice, I am impartial. So much so that you could be a murderer and have killed my best friend and gotten off Scott-free. As much as I would detest that, as a juror, when you're on trial for another murder and the facts prove your innocence I would vote to acquit.
The fact that the current justice process would never allow me to be a juror in that hypothetical scenario is besides the point of my commitment to honest/equal justice. For if a person is to be found guilty it should only be for a initiatory-of-force crime -- as opposed to breaking a political agenda law -- and then only for the actual initiatory-of-force crime the defendant is charged with.
Cite?
Like I said, common sense -- you don't have it.
You can donate the two bits to FR.
Lawyer Grant asked, "If the judge were to instruct you that the Second Amendment of the United States Constitution and Article 2, Section 13 of the Constitution of Colorado are applicable to this case, would you be able to follow that instruction?"
Aside from the fact that he is quite probably in contempt of court for putting words in the judge's mouth, he's quite obviously asking (prospective!) jurors to judge the Constitutionality of the ordinance that his client admitted violating. One would assume he'd have tried to make the same argument in trial, had he been allowed to do so.
The problem is that jurors are not empowered by the state or US Constitution to make such a judgement. That power is granted to the state and Federal judiciaries, respectively.
The judge in this case is permitted to determine whether Constitutional arguments are germane to the case at hand, just as he is permitted to sustain or overrule objections, or rule on the admissibility of evidence.
In this case Constitutional arguments are not germane to whether Stanley violated an established criminal ordinance. In a criminal trial, established ordinances must be and are assumed to be Constitutional.
A criminal trial is not supposed to determine the Constitutionality of the law under which the charges were made. That sort of legal power lies in the hands of the appelate courts.
"Usurpation" occurs when a body undertakes to exercise a power that does not properly belong to it. By stupidly attempting to turn a criminal trial into a trial of the Constitutionality of the ordinance, they were asking the court to usurp the powers of the appelate courts.
To: Zon
for a judge to have moral integrity and honesty the judge must inform every juror that they are to judge both the facts and the law as they pertain to the case.
That's not true, but you continue to insist that it is.
Accusing people of lacking integrity and honesty because they don't agree with you is cowardly.
Please try to be at least half way precise. I said judges and you carry that over to mean all people. I probably did say similar of you. It's not because you disagree with me that you are deficient in moral integrity and honesty -- you did that all on your own. Perhaps if you didn't post your thoughts you wouldn't be exposing those deficiencies.
Using this argument, a state or city so inclined could prohibit freedom of religion, freedom of speech, impose cruel and unusual punishments, etc etc. It's true that the Amendments in the Bill of Rights don't contain the phrase "the United States or any state" as do the more recently passed Amendments, but to put that forth as a serious argument is little more than sophistry and word games.
I can only be impartial as to whether or not a person is guilty or not guilty of violating a law, according to the facts, if I am not also judging the law at the same time. Judging the law is entirely separate from judging the facts.
At least you made it abundantly clear that you stand with the STATE and stand against the people.
Where did I say that? Your anarchist bent causes you to ASSUME that, but, as I said before, if I disagree with a law (and thus stand against the state), I will make that abundantly clear up front. It is not for me to take that prejudice into the jury box with me.
Not that this will matter to a statist like you but nonetheless, when a court process works towards seating a biased jury the court process has initiated force, so to speak. Thus, should a potential juror chose to lie about agreement with the law it is an act of defense on behalf of the defendant.
This is the most convoluted bunch of nonsense I've read all day. Lying as self-defense, in a courtroom? HAH!
If it's an agenda the agenda is to ensure that the defendant in fact does get an impartial jury.
You're not impartial if you think the law is unconstitutional.
I've enjoyed this dialogue with you, but we're just going over the same ground. We're not going to agree, but good luck at getting on a jury. I do everything I can to avoid jury service.
Your moral arrogance knows no bounds. Perhaps if you'd just ignore my posts, we'd both be happier.
What, the State is too big to be placed in the position of appellant?
Juries were given this power very specifically as a distribution of power and a check on both the Executive (the prosecutor) and the Legislature, based on considerations of Locke's consent theory. But if a jury is given the power to consent, and by consenting condemn a man, then the State must be prepared to abide contrariwise the withholding of that same Consent, for reasons best known to the People. Vox populi, vox Dei. Jury refusal to convict on the basis of unconstitutionality (as opposed to racist scalp-counting) is part of the phenomenon of non-consent and non-cooperation which is lumped together under the con law idiom of "materiality", which we might call practical effectiveness instead, which is actually part of the validation process by which laws, in a contractual society, obtain their reach and grasp. It is, so to speak, the acid test of a law. Madison referred to noncooperation and non-validation as "clogging", as a synonym for "conditioning" or "contingent requirement":
"The best informed apprehend some clog that will amount to a condition" (referring to what eventually became the Bill of Rights). (Letter from Jas. Madison to Edmund Randolph, July 16, 1788, in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787, Together with the Journal of the Federal Convention, Luther Martin's Letter, Yate's Minutes, Congressional Opinions, Virginia and Kentucky Resolutions of '98-'99, and Other Illustrations of the Constitution, ed. J. Elliot 1861).
Therefore the jury is one of the four "consensual gates" available to the People in the original Constitution, reserved by them as a check on Government. (See Elaine Scarry, "War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms", University of Pennsylvania Law Review, May 1991, p. 1276. (Cite is 139 U. Pa. L. Rev. 1257; on Lexis/Nexis, search "Scarry, Pennsylvania")
Thus the jury, like the voting public, gives what is called "perpetual consent" to the laws and their enforcement each time it renders a judgement. "Perpetual consent", which John Locke called "tacit consent", is a somewhat misleading term in that it actually means not "permanent" but rather "continuing" -- and it opens the possibility of nonconsent at any given moment. Therefore, the jury is empowered by a premeditated distribution of power (by the People, to themselves) to operate that one, transient gateway of perpetual consent, and if they want to consider the constitutionality of an ordinance, they may, expectations of the prosecutors and judges to the contrary absolutely notwithstanding.
Verdict: Reversible error, remand for new trial with prejudicial notice to the City for trying to stack the jury.
How say you?
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