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Old August 14, 2017, 06:40 PM   #51
Frank Ettin
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Quote:
Originally Posted by ShootistPRS
...No legal definition was supposed when the founding fathers put pen to paper, the document was easily understood by the common man. It took education, lawyers and judges to corrupt the "natural" meanings of the constitution and its first ten amendments....
A myth -- a comforting one perhaps -- but still a myth.
  • The Founding Fathers themselves were certainly uncommon men. They were active, mostly successfully, in the commercial and political world of the time. Many were lawyers. A few were judges. Almost all were very well educated. They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded and capable in the real world and knew how to make things work in the real world.

  • The Constitution as a whole deals with a variety of technical legal or public policy matters, e. g.: the power of Congress to provide uniform bankruptcy laws, set standards for weights and measure, and issue letters of marque and reprisal; prohibiting bills of attainder; the assignment of the judicial power of the United States to the federal courts and the defining the scope of the jurisdiction of the federal courts; defining the crime of treason; the cocept of States giving full faith and credit to laws and certain acts of other States; the supremacy of federal law; the probable cause standard for the issuance of a search warrant and the requirements for the warrant itself; the right to indictment by a grand jury if charged with certain serious crimes; the right to a jury in certain civil lawsuits.

    All of these are important, but technical matters, and real value and significance would likely be outside the experience of the 18th Century common man on the street.

  • The matter of the Bill of Rights was highly controversial. There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

  • Not the Constitution, nor laws in general, exist in a vacuum. There exist to be used, and they are used as tools for deciding controversies. And thus their meaning is realized as they are applied to the facts of a situation to decide the outcome.
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Old August 15, 2017, 12:35 PM   #52
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Frank,
It is apparent to me that you are a lawyer. The way you interpret the status of the constitution through laws instead of interpreting the laws through the constitution. The whole legal interpretation of our rights and what represents allowable restrictions on those rights when the bill of rights allowed for no such modification. You stand by the reasoning that the courts are the supreme judge of the law when in fact the jury is the final judge of the law and how it applies in any given case. That is why the jury's verdict cannot be overturned by any means if they decide to acquit. The juries have the final say on whether a law is just as applied to each case and whether a crime has been committed even though the evidence shows guilt beyond a reasonable doubt.
We, the People, have given limited power to the federal government and to the states through the constitutions and We, the People, can take that power away and return it to the people. No lawyer or judge has the power to stop that process once it is started. In spite of your education the People hold the power and not the lawyers and judges. There is a growing number of people who understand the power of the jury and the lack of authority the government has over us. Times are changing good sir.
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Old August 15, 2017, 01:48 PM   #53
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We, the People, have given limited power to the federal government and to the states through the constitutions and We, the People, can take that power away and return it to the people. No lawyer or judge has the power to stop that process once it is started.
IS the process to which you refer here a new Constitutional Convention??

I happen to be in the camp that considers that a spectacularly BAD idea.

Quote:
In spite of your education the People hold the power and not the lawyers and judges.
In spite of your education, you seem to be missing the point that there is the ideals of the Founders, expressed in our Constitution, AND the day to day reality we have, where they courts interpret and enforce those concepts through their decisions, rulings, case law, precedent, etc.

And the fact that the Founders set up our system giving them that authority. No, we often don't like, and disagree with some of the rulings, but the system has a means to redress them, as well. And without resorting to a new Constitutional Convention.

At one time, slavery was constitutionally legal, and upheld by the Supreme Court. The same system that did that also contains a mechanism allowing for peaceful change, without scrapping the whole thing and starting over. And without needing a Civil War. We got a Civil War anyway, for many, many reasons, including human ego, but we got it in spite of our Constitutional system, not because of it.

Quote:
There is a growing number of people who understand the power of the jury and the lack of authority the government has over us. Times are changing good sir.
There is also a growing number of people who misunderstand the power of the jury and the people. Times are ALWAYS "changing".

Remember the response given when the delegates left the Constitutional convention.

"what have you given us?"
(Franklin, I believe) replied..

"A Republic, if you can keep it."

Personally, I have my doubts that, were it up to people today, we would be able to keep a republic.

Most people believe /have been taught / trained, that the US is, or should be a democracy, and they go no further than that. And, their vote counts exactly the same as people who actually understand the issues involved.

Three wolves and a sheep voting on what to have for dinner is also democracy.

But its not a very good system, if you are the sheep.
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Old August 15, 2017, 01:53 PM   #54
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Three wolves and a sheep voting on what to have for dinner is also democracy.

But its not a very good system, if you are the sheep.
HEAR, HEAR!
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Old August 15, 2017, 02:13 PM   #55
Frank Ettin
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Quote:
Originally Posted by ShootistPRS
...The way you interpret the status of the constitution through laws instead of interpreting the laws through the constitution....
I'm not sure what you think this means, but what I describe and discuss is reality. I look at what actually goes on in the world -- what courts decide, how they make those decisions, and the real life consequences of those decisions.

The opinions of courts on matters of law, including what the Constitution means and how it applies in the particular circumstances of the matters before them, will affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

Quote:
....There is a growing number of people who understand the power of the jury and the lack of authority the government has over us. Times are changing good sir.
Jury nullification has been around for a long time. It's a natural consequence of the Constitutional prohibition of double jeopardy. And while in an extreme case it may be an ultimate safety valve it actually has very limited utility as an expression of the "Will of the People."
  1. Jury nullification is merely the expression of a jury's disinclination for some reason to convict a person who quite probably is guilty of the crime charged. It is the natural consequence of the prohibition of double jeopardy and works because the prosecution may not appeal a jury verdict of acquittal -- even when under the evidence and law the defendant was unquestionably guilty.

  2. Jury nullification doesn't change the law. It's not precedent. The law exists and continues to exist and can be applied in other cases. Jury nullification has only let a guilty person off.

  3. For jury nullification to work the jury must acquit. That means that all the jurors necessary for acquittal must agree even when they have accepted based on the evidence that the defendant is guilty, and they must so agree even though they had been instructed by the judge that they are to apply the law as explained by him to the facts as they, the jury, find. While a single juror can generally cause a hung jury, and hung jury merely results in a mistrial; and the defendant can be retried.

  4. Jury nullification only has meaning in criminal cases. A plaintiff can appeal an adverse verdict in a civil case.

  5. Jury nullification works only to the extent that the prohibition on double jeopardy applies. But often one can be tried both on a state criminal charge and a federal criminal charge without violation double jeopardy, even if each charge is based on the same facts.

    You might remember the Rodney King incident in the early 1990s. The four police officers who were involved in his beating were charged under state law with various "excessive force" crimes, tried in state court and acquitted (well, one drew a hung jury as to one charge). They were subsequently tried in federal court on federal charges involving the same incident and facts, and two of the officers were convicted and sent to federal prison.

  6. In theory of course reasons for an acquittal against the weight of the evidence and law could be noble. But historically there have been instances of jury nullification having clearly ignoble applicaton, such as when at times in our history a jury of White men in some States would resolutely refuse to convict a clearly guilty White defendant of the murder of a Black person.

    But since you brought it up, perhaps you'd care to show us some examples of jury nullification actually having been used to curb government abuse.

  7. Jury nullification of course is possible only when there's a jury, i. e., when a case is being tried to a jury, but precedent comes from appellate courts deciding matters of law. There were no juries in Heller or MacDonald deciding that the Second Amendment protected an individual right unconnected to service in a militia and that the Second Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment.
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Old August 15, 2017, 03:25 PM   #56
ShootistPRS
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As you well know it would take a great deal of time on my part to search for and find the examples of nullification that were used to curb government abuse but here is one that I can show you:
This was a case brought to trial before the constitution existed:

When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
that the truth of the facts stated justified their
publication. The judge instructed the jury that truth is
not justification for libel. Rather, truth makes the libel
more vicious, for public unrest is more likely to follow
true, rather than false claims of bad governance. And
since the defendant had admitted to the "fact" of
publication, only a question of "law" remained.
Then, as now, the judge said the "issue of law" was for
the court to determine, and he instructed the jury to find
the defendant guilty. It took only ten minutes for the
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.

A juror has the responsibility to judge the testimony he hears, the reliability of the witnesses, the law, the guilt of the defendant, and whether the law applies in the case at hand. This responsibility extends beyond the direction of the court and the court's definition of the law. No jurors oath can restrict his conscience.
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Old August 15, 2017, 03:36 PM   #57
Frank Ettin
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Quote:
Originally Posted by ShootistPRS
...here is one that I can show you:
This was a case brought to trial before the constitution existed...
That's the best you can do? In other words you can't support your preposterous claims with actual evidence.

You asserted:
Quote:
Originally Posted by ShootistPRS
...There is a growing number of people who understand the power of the jury...
You also asserted:
Quote:
Originally Posted by ShootistPRS
...Times are changing....
And when asked to show us an example of jury nullification actually curbing government abuse all you've got is a case that's more than 200 years old.
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Old August 15, 2017, 03:45 PM   #58
ShootistPRS
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As I said, like you, I have not the time nor the will to find the evidence for my case. You would have an easier time because you have better access to the information than I. As a lawyer it is in your best interest to deny that jury nullification is lawful and practiced. It shows that people have the ultimate power in the courtroom. A jury has more power than the house, senate, and courts because they can nullify the laws they feel are unjust.

So, if you feel you have the evidence to find me guilty of anything I demand a trial by jury. Yu don't have the authority to find me guilty of anything.

Last edited by ShootistPRS; August 15, 2017 at 03:51 PM.
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Old August 15, 2017, 04:28 PM   #59
Frank Ettin
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Quote:
Originally Posted by ShootistPRS
...I have not the time nor the will to find the evidence for my case. You would have an easier time because you have better access to the information than I....
In other words, you made your claims without any evidence. You were just guessing -- making stuff up. In any case, since they're your claims it would be your burden to support them, and it looks like you can't.

Quote:
Originally Posted by ShootistPRS
...As a lawyer it is in your best interest to deny that jury nullification is lawful and practiced....
I've never denied that jury nullification is lawful, nor have I denied that it is practiced, although in post 55 I pointed out its limitations.

The real questions revolve around how often it has been a factor and to what extent it has actually been a positive moral force.

Quote:
Originally Posted by ShootistPRS
...Yu don't have the authority to find me guilty of anything.
I don't have to find you guilty of anything. You've already admitted your lack of evidence to support the claims you made.
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Old August 16, 2017, 10:54 AM   #60
ShootistPRS
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My lack of evidence was one case where jurors over turned a judges directive and found a man not guilty even though he had admitted to breaking a law. The jury chose to support the act and not the law.
It is evidence that it has happened.
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Old August 16, 2017, 11:13 AM   #61
Al Norris
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Shootist, Franks point was not that nullification does not exist or that it is not used. That point was that it does not nullify the actual law. It only affects that particular case. Even the case you cited did not change the underlying law. It only changed the future of that one defendant.

I think this little side trip down history has run its course, and really has no effect on Law in general. It does not speak to the OP at all.
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Old August 17, 2017, 10:07 AM   #62
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Quote:
Does the 2A really matter?

Let's do a thought experiment.
Lets do another thought experiment. How many (what percentage) of people, who leave their native land (either by design or necessity) how many AVOID the United States because we have the 2nd Amendment???

Ok, its a rhetorical question, but consider this, a couple hundred years of immigration from all over the world, did not seek the United States because we had repressive gun laws.
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Old August 17, 2017, 10:20 AM   #63
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Interesting point. I'm sure many immigrants at least understand the desire to defend oneself. The majority just want pursue happiness and could care less either way. I'm going to guess that the mix of attitudes will be similar to the population already inhabiting the United States.
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Old August 17, 2017, 10:46 AM   #64
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The majority just want pursue happiness and could care less either way.
This is what I'd put my money on...
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Old August 18, 2017, 05:24 AM   #65
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The Earth would still be the Earth without the Amazon rain forest, or the Sahara desert, or the American 2nd amendment. Rather than picking apart and questioning the individual elements of American founding documents, I would submit the idea that the whole is greater than the sum of it's parts. It is simply one aspect of the USA that signifies how unique and special it really is.
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