Posted on 05/08/2007 10:05:16 AM PDT by ozoneliar
I can't do justice to your posting because I can't sort out WHEN some of the things that you are proposing take place relative to others.
For example, the judge can't dismiss a case AFTER it is submitted to a jury.
We also don't know for a fact that the District Court judge dismissed originally because he thought that the Second Amendment protected ALL citizens in keeping ALL arms. As mentioned earlier, there may have been a law on the books denying arms to people under 14. But its not relevant. What we do know to a certainty is that the District Court judge believed that the Second Amendment protected the right of Miller and Layton to possess a short-barreled shotgun.
Since the Supreme Court did not provide guidance that Miller and Layton needed to be militia members, the judge is not going to change his mind about the Second Amendment apply to Miller and Layton. The Supreme Court did point out that they lacked evidence that a short-barreled shotgun was useful to a militia, and on that basis they reversed and remanded.
The District Court judge is obligated to tell the jury what the law is. Miller's defense is not going to be able to argue protection for Miller's possession of a short-barreled shotgun unless the judge instructs the jury that the protection might apply.
Imagine for a moment that the Supreme Court had decided just the opposite with respect to the two prosecution arguments. That is, that the Second Amendment protects militia members for all arms, but offers no protection whatever for non-militia-members. The District Court judge would then be obligated to allow evidence regarding whether Miller or Layton were militia members, and the judge could disallow any evidence concerning the usefulness of the particular weapon as being irrelevant. In this case, the jury would be charged with deciding whether the prosecution had demonstrated beyond a reasonable doubt that Miller or Layton were not members of a militia.
In either case, the judge would disallow any "pleading" with the jury to ignore the judges instructions as to what the law requires.
I'm not asking you what you think WILL happen. I am asking you to apply your understanding of the Miller decision to tell me what YOU believe should happen, given that the Miller decision is the law.
robertpaulsen said: "...I believe the court would rule that this otherwise law-abiding citizen lacks standing to use the second amendment in his defense."
So you think that the court would rule that militia-membership is required? If a militia member were the defendant, would he have to prove something about the usefulness of the weapon?
The reason I ask is because the prosecution in Miller made TWO distinct arguments in asking for a reversal of the District Court dismissal. To me, it is very obvious that the reversal and remand was only granted based on one of the two arguments. The Supreme Court intentionally and purposely DID NOT grant the reversal and remand based on the other argument. I want to hear from you whether YOU think a militia-membership test is warranted and how you decided that such a test should be the law?
Another way of wording my question is really, do you recognize that there were two DISTINCT arguments by the prosecution in Miller? Do you recognize that usefulness of a weapon and militia-membership are two totally separate issues? Do you recognize that the Supreme Court was obligated to reverse and remand with instructions regarding both arguments if they thought they were relevant to the proposed trial of Miller and Layton?
Keep in mind that Miller and Layton probably WERE members of the "unorganized militia", as legally defined, and that they deserved the protection that such membership would afford them. The Supreme Court was obligated to instruct the lower court consistent with protecting the rights of the defendants.
So you're saying that Miller and Layton would have to actually go to trial, and it would be at that trial that shotgun/Militia evidence would be presented.
I don't agree. Why should a citizen be subjected to that? If the weapon he is carrying is legal (ie., the law under which he was charged is unconstitutional), then why go to trial? Isn't the District Court obligated to determine if the charges are valid? If the charges are not valid, if the law doesn't apply to Miller, if the law under which he was charged was unconstitutional, then why drag Miller through a trial, forcing him to suffer the time, expense and stigma of a felony trial?
"in order to determine whether the possesson of THAT WEAPON by MILLER AND LAYTON is protected by the Second Amendment".
Well, now you confused me. First, you've been saying all along that short-barreled shotguns are useful to a Militia and that the NFA tax on them is unconstitutional. Now you're saying that MAYBE short-barreled shotguns are useful, MAYBE they're not. You're now saying that Miller's short-barreled shotgun may not be useful and that will be up to a jury.
So what is it?
Also, you're saying that a jury can second-guess Congress? Congress says 18" and a jury can say 15"? Every short-barreled shotgun possession from now on has to go to a jury trial to determine if THAT PARTICULAR WEAPON is legal?
And if this is to be determined by a jury, and juries vary across the U.S., what's legal in one District may be illegal in the next. 15" here. 16" there. 17 1/2" legal over there. Something's not right with your conclusion.
I didn't say that. I said that I believe the court would rule that an individual citizen lacks standing to use the second amendment in his defense.
I believe a state (or a state Militia) would have to bring the case, saying that the federal government is infringing on their ability to form a state Militia by taxing a Militia-type weapon.
"Do you recognize that usefulness of a weapon and militia-membership are two totally separate issues?"
They can be. Is the weapon useful to a Militia?
If it is useful, then we could be looking at the same issue.
"Do you recognize that the Supreme Court was obligated to reverse and remand with instructions regarding both arguments if they thought they were relevant to the proposed trial of Miller and Layton?"
How did the U.S. Supreme Court know the other argument was valid unless they first determined if the weapon itself was useful? Certainly if the weapon wasn't useful to a Militia, then Miller and Layton's non-membership in a Militia is irrelevant, right?
So, the court felt more comfortable not commenting on the argument until the status of the weapon was determined.
Whether short-barreled shotguns are useful to a militia is a matter of FACT, it is not a matter of LAW.
I believe that there are virtually NO WEAPONS which are not potentially useful to a militia. And certainly, the Second Amendment protects the pre-existing right of the people to keep and bear arms, which then includes ALL WEAPONS useful for any other non-criminal use.
But what I believe is not what the Supreme Court decided in Miller. The District Court judge is not going to charge the jury based on what I believe or even what he believes. He is obligated to instruct the jury consistent with what the Supreme Court directed.
And furthermore, the judge is not going to decide the specific FACTS of the crime charged against Miller and Layton. For example, if it is charged that Miller and Layton robbed a bank, the judge would have no business directing the jury that Miller and Layton entered a specific bank. That is not a matter of LAW. Evidence is required to establish such a FACT and whether the evidence establishes the FACT is completely and totally up to a jury.
Hey, don't blame me for this mess. This is the intentional and purposeful result of the Miller Court. It is they who decided that some arms are useful and others aren't. It is they who decided that the fate of Miller and Layton would hinge solely on whether a particular short-barreled shotgun is useful to a militia. It is they who limited the scope of the Second Amendment.
As for Congress, they have no power to modify the Second Amendment. Whatever the amendment means, it is independent of and immune from legislative action. There is a mechanism for having a super-majority amend the Constitution, but Congress alone is powerless to do so.
The disagreements among juries regarding whether any particular weapon is useful to a militia would certainly be suitable for appeal of a criminal conviction. When the Supreme Court is faced with such an appeal, then they will realize that the consequences of the Miller decision are ridiculous, ambiguous, and deny due process. THERE IS NO LEGAL DISTINCTION AMONG ARMS WHICH CAN BE USED TO CONVICT PEOPLE OF A CRIME, FOR MERELY KEEPING AND BEARING ARMS. Perhaps the Supreme Court will hear the Parker case and rule consistent with the DC Circuit Court and eliminate the ridiculous test which was created by the Miller Court and which appears nowhere in the Second Amendment.
Bear in mind that I live in Kalifornia, where the Miller decision has been used to deny me the right to keep and bear a rifle because it has a pistol grip on it. This is what comes from creating distinctions which are nonsense.
Then what would the consequence of the Miller decison be? Do you think that the judge is just going to make the decision? What would other judges decide? When the disagreement among judges reaches the Supreme Court, do you expect the Supreme Court to decide which specific weapons are protected and which aren't?
Please tell me what you believe are the proper legal consequence of the Miller decision. The prosecution appealed and the dismissal was reversed, with the case remanded back to the District Court. That Court has no choice about holding the trial that was originally requested by the prosecution. If you think that the judge could do differently, explain what the judge could do consistent with the guidance from the Supreme Court.
Please don't suggest again that the judge or jury can simply act as if the Miller decision hadn't been made. That is not how the system works.
The District Court judge dismissed originally because he recognized that Miller and Layton are "people", as mentioned in the Second Amendment. The Supreme Court was asked by the prosecution to rule that only militia members are protected. The Miller decision does not grant that request from the prosecution. Instead, the Miller decision creates a "usefulness" test and directs the District Court that its dismissal is not valid because of this test. That is the only basis on which the District Court was reversed.
Additionally, criminal defendants never lack "standing". There may be laws which are inapplicable, but it is not a question of "standing". They not only have a right to their day in court, but the prosecution is insisting that they appear in court and are heard.
And I have pointed out several times on other threads and this one, that the intentional and purposeful result of their ruling is that a trial be held wherein the usefulness of the weapon would be at issue. Militia membership would not be an issue. If Miller and Layton are acquitted on that basis, THEN THERE CAN BE NO APPEAL. It's called double jeopardy. The Supreme Court knows about double jeopardy and is obligated to rule consistent with that protections. They are NEVER going to have a chance to rule again on a matter which you believe is relevant to the trial of Miller and Layton. EVER.
Based on your arguments, it seems to me that whether short-barreled shotguns are useful to a militia is a matter of jury OPINION. And to be fair, the question to the jury is whether the weapon "has some reasonable relationship to the preservation or efficiency of a well regulated militia".
"And furthermore, the judge is not going to decide the specific FACTS of the crime charged against Miller and Layton."
He was instructed by the U.S. Supreme Court to determine if the weapon has some reasonable relationship to the preservation or efficiency of a well regulated militia. Why does he have to put Mr. Miller on trial to do that?
Modify? No. But they may certainly "reasonably regulate" the arms protected. Even the Parker court conceded that.
"The disagreements among juries regarding whether any particular weapon is useful to a militia"
This whole theory of yours, I'm sorry, is ridiculous -- juries deciding which arms are suitable for their state Militia and which arms are not. A jury?!? Even if I were to accept that, the thought that machine guns are protected for individual use and neither Congress nor the states may legislate their use ... I'm ... well, I don't accept that at all.
I already did. The judge could hold a separate hearing on the usefulness of the weapon. If it's useful, he dismisses the charges as he did before, but this time he has the "evidence" the U.S. Supreme Court requested he get.
If it's not useful, he commences Mr. Miller's trial.
He did not! He dismissed it because Section 11 of the NFA violated the second amendment! Section 11 dealt with interstate commerce.
"The Supreme Court was asked by the prosecution to rule that only militia members are protected. The Miller decision does not grant that request from the prosecution.
The Miller decision neither granted nor rejected that request from the prosectiion. The Miller decision did not mention that request at all.
The U.S. Supreme Court in Miller ruled that a trial must be held? I must have missed that ruling.
I was under the impression that the District Court was directed to determine if the weapon in question had some reasonable relationship to the preservation or efficiency of a well regulated militia. Wouldn't a hearing suffice, with experts providing the "evidence" the U.S. Supreme Court was looking for?
Trials are the mechanism that our system of justice uses to determine facts and to enforce the law. The judge has no other way to determine facts that are used to support a criminal prosecution. There are instances when a court is able to take "judicial notice" of a fact, like whether May 14th, 2007 is a Monday. But non-trivial facts about which the prosecution and defense disagree, are determined by juries who consider the weight of evidence presented at trial.
If you agreed to this detail of how our legal system works, then it would be easier for you to see the intentional and purposeful meaning of the Miller decision. If you persist in denying that facts must be submitted to a jury, then you will NEVER draw the same conclusions that I will. I suggest that you seek out a lawyer friend and ask about this.
If you can name something that is "useful to a Militia" but which does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia", tell me what it is.
Conversely, if you can name something that has "some reasonable relationship to the preservation or efficiency of a well regulated militia", but which is not "useful to a Militia", tell me what it is.
You are splitting hairs here. The test is only about whether the weapon itself IS or IS NOT among that class of weapons that THE PEOPLE have the right to keep and bear. It is not about Miller or Layton's role in a militia. Tell me in what way my terminology, "useful to a Militia" is deficient in describing what must be determined.
This was not my doing. You and I both seem to agree that there is no true distinction that can be determined as a matter of fact which will clearly and unambiguously divide weapons into two classes; those that are useful to a militia and those that are not.
It was the Supreme Court, in its nonsensical effort to permit Congress to violate the Second Amendment, which caused this problem. It is only the Supreme Court, hopefully in the Parker case, which can rectify this error.
And for correctness sake, we should refer to jury "opinions" as verdicts or judgements, since the jury is instructed to disregard some sources of opinion, such as prejudice.
Nobody has ever stated that any particular jury is going to deprive a state militia of any weapon. But the Miller decision very clearly directed that the trial of Layton and Miller will be decided on the basis of which weapons are useful to a militia.
If any state militia decides to arm itself with 12 inch shotguns, then the only way to deprive them of such weapons would be for a prosecutor to charge each and every member with violating NFA 34. Then a jury will consider evidence regarding the weapon. It's the Miller Court which stated that some weapons may not be suitable and that some of such weapons might be controlled by NFA 34.
You have just pointed out why Congress cannot be used as a source of "fact" regarding such weapons. You complain that a jury might deprive militias of some weapons. But you have no problem with Congress depriving the militia of some weapons.
Why didn't the Supreme Court just call witnesses then? What's different about a trial court? I've already stated many times that judges decide matters of law and that juries decide matters of fact.
Do you understand WHY Miller and Layton have a right to a trial by jury? Why bother if a judge can determine all the relevant facts? You really must learn this distinction. Every objection you have to having a jury decide such an important matter, can be applied to having a judge decide such a matter, or to having Congress decide such a matter.
When it comes to criminal trials, there is no choice. Neither Congress nor the Surpeme Court nor a trial court judge has the authority to decide whether a defendant is guilty or innocent of a crime. Such decisions are decided by juries who evaluate evidence presented at trial and reach a verdict based on law as instructed by a judge. The judge tells the jury the law. He doesn't tell the jury what the facts are.
Let's say Miller and Layton were charged with armed robbery. Do you think that the judge is going to use a hearing to decide whether they were armed at the time the robbery was committed? What if Miller had been carrying a screwdriver? Was he armed? What if he was carrying a box cutter? What about a letter opener? Who decides?
A rock. Brass knuckles. A switchblade. A Derringer. A sword cane. Nunchucks. Throwing stars. A sawed off shotgun as pictured in my post #104.
We've been using "useful" because it's easier to type. Let's not get carried away and now think that's the standard set by the Miller court.
" The test is only about whether the weapon itself IS or IS NOT among that class of weapons that THE PEOPLE have the right to keep and bear."
Why do you insist on missstating the argument? The test is only about whether the weapon itself IS or IS NOT among that class of weapons that have some reasonable relationship to the preservation or efficiency of a well regulated militia. NOTHING about any individual's right to keep and bear them.
"It is not about Miller or Layton's role in a militia."
Correct. It wasn't. It MIGHT have been, had the case continued, but that's speculation.
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