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."
Wrong again.
One minute you are claiming that declaring a law unConstitutional means that nobody can be prosecuted under it. Now you are suggesting that courts are going to ignore the Supreme Court when laws DO have unConstitutional reach.
When the District Court judge charges the jury, he will instruct them consistent with NFA 34 AND the Supreme Court Miller decision. He will explain that the NFA 34 cannot be used to infringe the right of the people to keep and bear arms that are useful to a militia. He will not instruct them that a person needs to be a militia-member to be protected.
It will be for the jury to decide whether the evidence presented at trial proves beyond a reasonable doubt that the short-barreled shotgun possessed by Miller and Layton is NOT useful to a militia. Only in that case should they return a guilty verdict. It is not going to be a case of "jury nullification". It is a case of "Supreme Court nullification".
I congratulate you for assuming that the evidence will show that the short-barreled shotgun is useful to a militia.
If the prosecution entered NO EVIDENCE whatever that could establish that a short-barreled shotgun is not useful, then a motion to dismiss might make sense. The judge has the authority to recognize that there is NO EVIDENCE for the jury to evaluate. In other words, if the judge decides that everything presented by the prosecution is insufficient to establish that a crime has been committed, then the judge can dismiss. Such a dismissal would typically be such that double jeopardy attaches, and the defendants could never be tried again for that crime.
But if even a shred of evidence is presented which a jury might believe indicates that the shotgun is NOT useful to a militia, then the judge would be obligated to submit the case to the jury. It is not the Judge's job to decide the facts of the case. As a matter of law, there may be insufficient evidence. But if there is evidence, then the jury decides which evidence to believe.
Is this the case that defined the Bill of Rights as completely individual rights?
When you said, "It was a foreseeable and intentional act on the part of the Supreme Court to allow INDIVIDUALS to be acquitted SOLELY on the basis of whether the arms they possessed were useful to a militia", you were painting with a very large brush. You were impling (I think) that their membership in a Militia was irrelevant.
I was merely wondering out loud how your statement would hold up if there were other factors barring Miller and Layton from owning a gun (eg., IF there was a law in 1938 barring felons from owning guns).
If the NFA taxed "all arms not useful to a Militia" then, yes, a jury could hear testimony on short barreled shotguns and make their own decision. And their decision could be that the law, which is a valid law, simply didn't apply to the weapon in this case. Miller and Layton would be acquitted, yes, not because they had an individual right but because the law didn't apply to the weapon they carried.
But Congress specifically taxed shotguns with barrels less than 18".
Using the guidance provided by the U.S. Supreme Court, if it is determined that Miller's less than 18" shotgun IS suitable for Militia use, then the law itself is unconstitutional and the charges should be dismissed by the judge. If he doesn't and the jury acquits, then I agree with you that it would be "jury nullification with Supreme Court guidance and approval".
No, I never argued that the Miller decision found it unconstitutional. My interpretation of the U.S. Supreme Court decision in Miller is that IF it is shown that a weapon covered by the NFA was useful to a Militia, then the tax on that particular weapon would be unconstitutional.
In my opinion, the case would have to be presented by a state or a state's Militia, saying that the tax on that particular weapon infringes on the ability of that particular state to form a state Militia (it's possible that not all states use identical weaponry).
This is probably why the NFA is still being enforced.
It was actually the Miller Court which was painting with a very large brush. Any legislated limitations on the right to keep and bear arms that satisfied "strict scrutiny" would be in little jeopardy. I doubt that that such limitations were in place, though.
Hollywood is not necessarily the best source on legal history, but I recall one movie depicting a bank-robbing felon on the run purchasing a shotgun in a hardware store probably in the sixties. There was no consideration of whether the man was an escaped convict, felon, or legally insane. It was pretty obvious that the man was older than 14.
Most of the prior restraint laws were passed in 1968, I believe.
Such charges would have to have been brought and there is no indication that the District Court judge considered anything other than NFA 34. Even today, felons are not charged with possession of a firearm in cases where they sought the firearm in an act of self-defense from a lethal attack. It's similar to the problem of trying to charge people with failing to register an illegal gun. You can't violate a person's protection from self-incrimination. Similarly, you can't violate a person's right to defend themselves from a lethal attack.
You are trying to apply "logic" which differs from that of the Supreme Court in Miller. The Supreme Court guidance was to hold a trial and acquit if the weapon was useful to a militia. But to convict, if it was not. This is equivalent to saying, it is not a crime for Miller and Layton to keep an arm useful to a militia. But it is a crime for Miller and Layton to keep a firearm that IS NOT useful to a militia.
The Second Amendment does not protect arms, it protects people, and according to the Miller Court it only protects people in keeping SOME arms. But inanimate objects do not have rights.
The Miller Court was completely comfortable with simply constraining the existing law in particular cases but not in all cases. But it very explicitly protected the right of Miller and Layton to keep an arm useful to a militia. A militia-membership test was argued by the prosecution but such requirement was not granted by the ruling.
That is not how it is done. The usefulness of the shotgun to a militia is a factual matter, it is not a matter of law. The District Court judge is not going to decide whether the evidence does or does not establish the nature of a short-barreled shotgun. Dismissal is only going to happen if the judge recognized that the prosecution introduced NO EVIDENCE regarding the shotgun and such dismissal would be on the grounds of insufficient evidence. Otherwise, the jury is going to decide what the evidence means.
Also, the extent to which the NFA 34 is Constitutional was already spelled out by the Supreme Court. The law is constitutional when applied to arms NOT useful to a militia. It is unConstitutional when applied to arms which ARE useful to a militia. And no individual can be convicted under NFA 34 for possessing an arm which is useful to a militia.
The District Court judge has lost his authority to rule the NFA 34 Constitutional or not unless it is based on an issue which was not before the Miller Court. The militia-membership WAS before the court, thus that issue is no longer relevant to the case. If the prosecution dreamed up another basis for appealing prior to trial, the District Court judge MIGHT allow the appeal, but I don't think he is obligated legally to do so. The prosecution doesn't get an unlimited opportunity to delay the trial. The prosecution has to decide what they believe the law is and proceed to trial on that basis.
We do agree that the Miller Court nullified some application of NfA 34. We DO NOT agree that "jury nullification" is involved.
The District Court judge is obligated to guide the jury with regard to what the law is. The laws that apply are NFA 34 and the Second Amendment of the US Constitution. The jury will not be given the option of ignoring either one. They will have an obligation to apply both as dictated by the Supreme Court.
The jury's job will be to decide whether the evidence presented at trial establishes beyond a reasonable doubt that Miller or Layton committed a crime, given the District Court judge's guidance as to what constitutes the crime charged. The jury would be fully justified in acquitting if the short-barreled shotgun is found to be useful to a militia and the jury would be unjustified in finding otherwise.
Miller and Layton were charged with a felony. The prosecution sought from the Supreme Court a reversal so that Miller and Layton could be tried. If your understanding of Miller is correct, then why did the Supreme Court not tell the lower court to convict if the defendants are not a militia?
Why don't you descibe what actions you think the lower court was obligated to take, given the meaning you ascribe to the Miller decision?
Try to remember that the description you give must outline what evidence can be used to convict Miller or Layton at trial. That was the basis of the appeal from the prosecution. The District Court judge, in his original dismissal felt fully justified by application of the Second Amendment. What modification to that understanding did the Supreme Court mandate be applied to the trial of Miller and Layton? What circumstances would result in an acquittal of Miller and Layton? From a precedential standpoint, what evidence would result in an acquittal of anybody else charged with violating NFA 34?
Assume today, that an otherwise law-abiding citizen is charged under NFA 34 for possessing an M16 without a tax stamp. What would be required for conviction under your understanding of the Miller decision?
This statement of yours is very revealing.
When you write "the case would have to be presented" you completely ignore the reason why the Miller decision was made. It was made to satisfy a prosecutor who challenged a dismissal. The prosecution wanted a reversal so that a trial of Miller and Layton could take place.
The only legal interest that permitted the prosecution to come to the Supreme Court was in having the District Court judge reversed with guidance that would permit the trial of Miller and Layton. The trial of Miller and Layton is the only thing which we can know with certainty was the object of the Miller decision. Applicability to other cases requires comparing the circumstances of Miller or Layton to other possible defendants. The prosecution, in fact, would have lacked "standing" to apply for anything else.
For all we know, a later Supreme Court might rule that militias lack standing because the text of the Second Amendment protects "the right of the people to keep and bear arms", and NOT "the right of the militias to keep and bear arms". I know of no "collective rights" whatever. Even corporations are treated in court as "fictitious persons" and not as collectives.
Hmmmm. Personally, if the law was unconstitutional, I'd rather not have that on my record.
Better the judge dismisses the charges than to have my personal record say that I was arrested on a felony, jailed, tried and found not guilty.
But you're saying the Supreme Court suggested a trial and acquittal, huh?
Yes they would, but that's NOT what the law says. I'll say it once more. If the law was "a tax stamp is required for weapons not useful to a Militia", then they jury can determine if Miller's shotgun requires a tax stamp (based on the evidence presented at the trial).
But the law doesn't say that. The law passed by Congress is very specific and very clear. The law says "shotguns less than 18". It's either/or. Over 18", no tax stamp. Less than 18", tax stamp required. How can it be plainer than that? Where's the confusion? Where's there room for interpretation?
If the jury disagrees with the law itself, they have no power to rewrite it. They can only nullify it for Miller and Layton.
Hell, another jury in another case could hear the same evidence and say the shotgun isn't useful to a Militia. (If it looked like the one posted in my post #104, how would you vote as a juror?) Then those defendants would be found guilty.
There must be some very interesting discussions going on in DC Democrat circles regarding the risk to the anti-gun movement if this case goes to the Supremes
Yes, and we agree the U.S. Supreme Court told him he was wrong to dismiss the case. The District Court judge thought that all weapons for all citizens were protected by the second amendment and they're not. It turns out that the Supreme Court is looking for weapons that have a "reasonable relationship to the preservation or efficiency of a well regulated militia".
Now, if you're the District Court judge, your decision reversed and remanded by the U.S. Supreme Court, what are you thinking? Are you really thinking that the U.S. Supreme Court is saying that the second amendment protects Militia-type weapons for individual citizens but NOT non-Militia type weapons for citizens? Does that make sense to you? Isn't that just the opposite of what you would think?
You're saying the U.S. Supreme Court is ruling that a citizen can own and use a machine gun, but not a handgun? (I have a lower court ruling somewhere that concluded a handgun is not a Militia-type weapon.) Do you see what I'm saying?
"Why don't you descibe what actions you think the lower court was obligated to take, given the meaning you ascribe to the Miller decision?"
Well, if I was that District Court judge, I'd now be thinking along Militia lines, given that slap-in-the-face reversal of my dismissal. I would hold a separate hearing and call experts to determine if Mr. Miller's weapon bore some reasonable relationship to the preservation or efficiency of a well regulated militia, as instructed by the U.S. Supreme Court. If it did not, then I would proceed with Mr. Miller's trial. Mr. Miller can always plead with his jury in his trial and hope they think it's a Militia-type weapon and acquit on that basis.
If Mr. Miller's weapon did bear some reasonable relationship to the preservation or efficiency of a well regulated militia, then it's decision time. The second amendment protects a Militia-type weapon from infringement, but does the second amendment protect an individual citizen's right to keep and bear it or not? If I, as the District Court judge, believe it protects an individual citizen's right to keep and bear Militia-type weapons, I dismiss the case (again).
If I do not believe it protects an individual citizen's right to keep and bear Militia-type weapons, then I declare that Mr. Miller lacks standing to use the second amendment in his defense and proceed with the case. Again, Mr. Miller can plead with his jury in his trial and hope for an acquittal.
If I were to simply go with the odds, I believe the court would rule that this otherwise law-abiding citizen lacks standing to use the second amendment in his defense.
The DC Circuit might rule differently. Or they might say a $200 tax stamp is not an infringement. Or they might say that taxing an M16 is a reasonable regulation as long as an AR-15 is left untaxed.
The District Court dismissal was a rejection of the prosecution's attempt to hold a trial. The Supreme Court reversed that dismissal, over-ruling the District Court judge. Barring any other impediment to a trial, then the prosecution would get its way.
The Supreme Court indicated that they lacked "judicial notice" that the weapon in question was useful to a militia. That is equivalent to saying, "the District Court must determine whether a short-barreled shotgun is useful to a militia in order to determine whether the possesson of THAT WEAPON by MILLER AND LAYTON is protected by the Second Amendment". Such a finding of fact is subject to dispute by the contending parties in a trial, evidence is entered by both parties, and the jury will be charged to decide what the facts of the specific case are.
The District Court judge would be obligated to explain "the law" to the jury, detailing which facts would have to be true in order to decide guilt. The law in this instance would include NFA 34, the Second Amendment, and the Supreme Court's Miller decision. The judge would probably NOT explain to the jury what the basis of each law is, but rather would supply the legal ramifications of taking into account all three sources of relevant law. The jury, for example, would be unaware of the Supreme Court case. Knowing whether the Supreme Court was unanimous or not would be prejudicial, since the Court vote wouldn't change what the law is.
The District Court judge is obligated to explain "the law" to the jury prior to their deliberations. The law in this case consists of the Second Amendment, NFA 34, and the Supreme Court decision in Miller. "The law" is the combined effect of all three. Without going into details as to the source of the law, the judge will explain which facts, if true, would constitute the commission of a crime. It is not up to the jury to overrule the Supreme Court any more than the jury is expected to overrule Congress. Nor is the jury entitled to ignore the Second Amendment. They are all part of the law as it applies to Miller and Layton.
robertpaulsen also said: "Hell, another jury in another case could hear the same evidence and say the shotgun isn't useful to a Militia. (If it looked like the one posted in my post #104, how would you vote as a juror?) Then those defendants would be found guilty."
You have just pointed out why the Supreme Court decision in Miller is flawed. The Second Amendment does not suggest that the protection of the pre-existing right to keep and bear arms is limited to just some arms. The Supreme Court invented this distinction. If I was on a jury, I would most certainly exercise jury nullification and ignore the usefulness test. Possession of any shotgun is not a crime in my book and nobody is going to jail because of it if I have a say in it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.