Posted: 12/5/2004 7:24:47 PM EDT
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The Constitution Is A Gun Imagine you bought a gun. The most expensive custom self-defense weapon possible – with all the bells and whistles you could only dream of mounted on it and with the best gunsmith in the world working on it. Now, imagine that, when the worst happens and you are attacked, you would not have the willpower needed to use it. Would that gun save you? It is likely that when it would be over, you would be lying there dead, clutching the most expensive paperweight in the world in your cold, dead fingers. It is a well-known truth among gun enthusiasts and self-defense experts that a gun – or any other weapon – is only as effective as your will to use it. Abandon that, and the most advanced weapon in the world is worth no more than the steel and plastic and wood it is made of. And yet, surprisingly, few people understand that the principle also applies elsewhere – most importantly, in the fight for your Constitutional rights. The sad truth is that the oppressive majority of Constitutional "activists" – if the word yet applies – are not "active" at all. Consider: there over 450,000 members in Gun Owners of America (a "hardcore" pro-Second Amendment] organization). Those members faithfully donate money to the GOA, which, in turn gives the money to various lobbyists (interestingly, the GOA spends more money on lobbyists in absolute numbers than the NRA. On the other hand, half the GOA lobbying money gets paid to people named Pratt). Similarly, the NRA – which admittedly is a "softer" group than the GOA – numbers over four million people, and spends equally staggering amounts of money on defending the Constitution (lobbying is just one part of the NRA's list of priorities). So what happened? Why are we almost continuously losing our rights? This is not, by any means, a criticism of the GOA, the NRA, or any other groups. This an attempt to ask a key question: what went wrong? Because it is evident to anybody who is watching that something is amiss. If everything would be fine, people would not be sitting in prison because a piece of steel they owned was an inch too short. To add oil to the proverbial fire, I will remind my readers of a truth with which many are doubtlessly familiar. Namely, that, under the Constitution, the jury retains the right of jury nullification – the right to judge not only the facts, but the law in question, and to acquit the defendant when a law is unconstitutional or unjustly applied to him (additional information on the subject may be found at www.fija.org ). To do that is, in fact, the civic duty of the juror. What would happen if jurors refused to convict people under laws such as NYC's Sullivan Act? What would happen if DA's across the nation knew that, if they want to have their good conviction percentage – and they do – they had better not bring people to trial on charges that their rifle's barrel is just 15 7/8" long instead of the full sixteen inches? We know the answer: gun control would be dead. Admittedly, jury nullification is just one example. The Constitution provides many ways of defending your rights – from the First Amendment's pickets and marches, to the 5th Amendment's appeal process, to the 6th Amendment's jury nullification. But the fact - and the problem is – they are not getting used. As supporters of the Bill of Rights, we much prefer to just mail $25 to one group or another and just expect then to protect our rights for us. That is just not going to happen – if it was possible, it would have happened already. A person who expects people to defend his rights is like a person who has no functioning immune system. The hospital staff can put him into a clean and sterile room, and wear hermetic suits when talking to him. For a while, they may be able to protect him – but when the smallest spore of the faintest illness gets into the sealed room, the patient will die, and not even the best doctors on the planet will save him. Just like anything else that is important – whether your safety, your health, or anything else important in your life, your freedom needs your participation. Ask an expert, and they will tell you that the biggest asset in politics is activists – people ready to detach themselves from their chairs and do something about the matter. Jason Sorens, who teaches Political Science at Yale, founded the Free State Project on that very principle (you can find out about the Project at www.freestateproject.org ). While certainly nobody can demand activism from you, remember, that the only person who you can truly rely to protect yourself in a gunfight is you. That is, after all, why people own guns. If you don't trust other people (the police) to protect your life, why do you trust others to protect your liberty when you don't? P.S. Yes, I wrote it myself. And there's more like it at http://microbalrog.blogspot.com/ Any care to donate to keep it up? 
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I am concerned with freedom. Where I live, we have basically a pure democracy, and nearly none of the rights guaranteed to you people are guaranteed to me. So, obviously, I try serve to serve freedom with my keyboard and brain, whereever I can. Also, on a more selfish note, I intend to move, when I can. Any comment on the content otherwise? |
| What you don't understand is that in America, people talk a good talk, but they don't follow through on anything. Look back in our history: The Constitution has rarely been followed. It isn't followed today, and wasn't in the past. It is a lofty, feel good document that makes Americans think things that have never been true and never will be true. Our country is run by the same wannabe tyrants as Russia, China, you name it. All organized states are the same, they only vary in how much tyranny and oppression they are capable of producing. As soon as you give someone unchecked power, this is what happens. |
Damn, that's the most ignorant post I've read in at least a half an hour. |
The ski is falling, the ski is falling! 
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While fairly well written, it is painfully obvious that you have studied neither our Constitution itself nor the history of said document since 1787. A simple examples: Jury Nullification is neither expressed nor implied anywhere in the document. You also conflate state and federal action and condemn both as equally invalid under our Constitution. The concept of Federalism clearly eludes your grasp. |
In fact, SCOTUS has ruled previously that said right is covered by the Constitution's Bill of Rights and is part of the powers of the jury, in such cases Sparf vs US 1895, and lower courts have re-affirmed that as early as US vs Dougherty 1972.
Indeed, the Bill of Rights enumerates rights protected equally from federal and state action - because they are God-given/natural rights, which precede any local or federal government, and it is only legitimate as far as it enforces those rights. The 14th Amendment only reinforces that notion. |
So let me get your jurisprudence clear: When the Court decides that Jury Nullification is good, even though it appears nowhere in the Constitution, the Court is correct and is defending freedom. When the Court decides in opposition to your beliefs, and finds something not present in the text of the Constitution, then the Court is wrong and being oppressive of freedom. Other than your own opinion, how are any of us benighted folks to determine when the Court is in the right, and when it is wrong? BTW, Sparf does NOT support the concept of jury nulliication. A few quotes from the case: "Forsyth, in his History of Trial by Jury, — a work of merit, — discusses the doctrine advanced by some that the jury were entitled in all cases, where no special pleas have been put on the record, to give a general verdict according to their own views of the law, in criminal as well as in civil cases. He says: 'It is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right.' 'Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law can assert that it sanctions the doctrine which is here combated.'" Another: "Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law." And one more: "Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried." Your reading of the Bill of Rights and its application in your final paragraph above demonstrates that you really do not understand the fundamental concept of Federalism, one of the foundational principles on which our system of government rests. Don't get your legal information from internet websites run by crackpots. I studied the Constitution for the better part of a decade while working on my Masters and Doctorate in U.S. Constitutional Law and History. |
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I see your point and raise you one: The weight of this deliberate and unanimous declaration of the rightful power of the jury to decide the law in criminal cases is not impaired by the obiter dictum hastily uttered and promptly recalled by Chief Justice Best in the civil case (summarily decided upon a narrower point) of Levi v. Milne, and [156 U.S. 51, 142] reported so differently in 4 Bing. 195, and in 12 Moore, 418, as to leave it doubtful what he really said. And according to later English authorities, even in civil actions, the question of libel or no libel may be submitted by the judge to the jury, without expressing his own opinion upon it. Parmiter v. Coupland, 6 Mees. & W. 105, 108; Baylis v. Lawrence, 11 Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4 Exch. 284. And more! In 1816, upon the trial of an indictment for murder, the supreme judicial court of Massachusetts, held by Chief Justice Parker and Justices Jackson and Putnam, instructed the jury as follows: 'In all capital cases the jury are the judges of the law and fact. The court are to direct them in matters of law, and, although it is safer for them to rely on the instructions derived from that source, still, gentlemen, they are to decide for themselves.' Bowen's Trial, 13 Mass. 356. In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as unquestionable, that 'in criminal prosecutions the jury are the judges of both law and fact.' Com. v. Worcester, 3 Pick. 462, 475. In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde, and Morton, the right and duty of the jury to decide the law as well as the fact involved in the general issue were recognized and affirmed in the charge to the jury, and were distinguished from the right of deciding questions of evidence, as follows: 'As the jury have the right, and, if required by the prisoner, are bound, to return a general verdict of guilty or not guilty, they must necessarily, in the discharge of this duty, decide such questions of law, as well as of fact, as are involved in this general question; and there is no mode in which their opinions upon questions of law can be reviewed by this court or by any other tribunal. But this does not diminish the obligation resting upon the court to explain the law, or their responsibility for the correctness of the principles of law by them laid down. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they known them to be wrong. And, when the jury undertake to decide the law (as they undoubtedly have the power to do) in opposition to the advice of the court, they assume a high responsibility, and should be very careful to see clearly that they are right. Although the jury have the power, and it is their duty, to decide all points of law which are involved in the general question of the guilt or [156 U.S. 51, 146] innocence of the prisoner, yet when questions of law arise in the arraignment of the prisoner, or in the progress of the trial, in relation to the admissibility of evidence, they must be decided by the court, and may not afterwards be reviewed by the jury.' Com. v. Knapp, 10 Pick. 477, 496. And more! To that date, or later, the right of the jury in criminal cases to decide both the law and the fact, even against the directions of the court, was certainly recognized and acted on throughout New England, unless in Rhode Island. State v. Snow (1841) 18 Me. 346; Doe, C. J., in State v. Hodge, 50 N. H. 510, 523; State v. Wilkinson (1829) 2 Vt. 480, 488; State v. Croteau (1849) 23 Vt. 14; Witter v. Brewster (1788) Kirb. 422; Bartholomew v. Clark (1816) 1 Conn. 472, 481; State v. Buckley (1873) 40 Conn. 246. See Laws 1647, in 1 R. I. Col. Rec. 157, 195, 203, 204. |
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And another one, for the crowd! 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. Still Sparf. |
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Obviously, you do not know how to weed of dicta from the core of the case in Sparf. Your quotes deal with a narrow, technical issue with the juries power to decide the law. Sparf is a perfect example of this. The Court did not find that the jury had the right to decide the law in all its points, but that the trial judge erred in not instructing the jury as to their right to find the defendent guilty, under the law, of manslaughter instead of murder. The law the jury was to judge was not the murder statute, but which of the laws, murder or manslaughter, was most applicable to the facts of this particular case. You are in way over your head here. And you still have not addressed my question: Since Jury Nullification is nowhere mentioned in the Constitution, what gives the Court the power to grant this right, but for you to decry when they find others not mentioned in that text??? "Because I say so" is not a Constitutional argument. |
First of all, I never decried the court for finding other rights unmentioned in the Constitution. The 9th amendment specifically claims that there are many rights out there that are not explicitly mentioned. The right to privacy is not explicitly mentioned there either. Where does it mention you have the right to be tried by a jury of twelve? Why not six? Why unanimous vote to convict? It refers to common law- which had juries nullify stuff. And, finally, I still point to the quotes above. I do not see any valid rebuttal from your side yet. |
My quotes from Sparf come from the end, wherein the Court rules that the concept of jury nullification, while having a long history, is not a part of the constitutional requirement for trial by jury. Sparf noted many cases at common law in which courts ruled jury nullification invalid, many the found it valid, and in the end, the SCOTUS found it to be invalid. Sparf did overturn the conviction of one of the two defendents, but did not do this based on jury nullification, but on the presiding judges error of law in instructing the jury. Here is the direct ruling of the Court on the issue of Nullification:
No better refutation of your contention that Sparf sanctions jury nullification is the fact that both Justices Gray and Shiras DISSENTED from the ruling in this case specifically because they wanted the Court to find a right of jury nullification. Here is what Gray had to say:
That is why I mentioned the danger of obiter dictum, the trap into which you fell, when reading case law. Court opinions often range far and wide, and include much information that has no bearing on the question at issue. |
He / it strikes me as just another nihilist child, sneering and posturing and sniffing. The only way for it to elevate its pathetic existence is to put down everything else. "unchecked power" my ass. thelibertarian, you are quite simply an Idiot. |
Ya'll brought a smile to my face.
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Because even if a jury oversteps its bounds, and does nullify the law, jeopardy attaches and the person can never be retried for that crime. |
Correct. The power exists. The right does not. I have the power to kill others. I do not have the right. And no matter what happens, once I exercise the power, it cannot be undone. Uncle Ben was correct: "With great power comes great responsibility." |
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Per se, Paebr, we could argue all the powers of the jury are powers, rather than rights [several states acknoledge nullification openly, even]. Rights are them innate, natural, god-given things. After having agreed on that point, I prsent a new question: Is jury nullification a morally legitimate means of protest? |
No state in the US openly acknowledges the right of jury nullification. Where did you get that information? Actual cases of jury nullification cut both ways: While supporters always point to John Peter Zenger's 1735 acquital to show how nullification can protect liberty, they ALWAYS fail to point to "bad" examples. The most egregious of these is the numerous white murderers who killed blacks in pre-Civil Rights America, and were let go by all white juries. These juries nullified the murder law, and further lynchings ensued. Certainly NOT a blow for liberty. So much for morally legitimate protest. If you do not like the law, work to have it changed. We have a system of representation that is set up for this purpose. Nullification short-circuits, in a very unpredictable and haphazard way, the responsibility citizens have to see that laws are fair. One jury nullifies, another, in the same circumstances, does not. Justice is no longer blind, or equitable, but becomes entirely subject to the legal understanding of 12 people not bright enough to get out of jury duty. |
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Here's some state constitutions: Article 23 of Maryland’s Constitution states: In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five thousand dollars, shall be inviolably preserved. Art. I, Sec. 19, of Indiana’s Constitution says: In all criminal cases whatever, the jury shall have the right to determine the law and the facts. Art.I, Sec. 16 of Oregon’s Constitution says: Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases. Art. I, Sec. 1 of Georgia’s Constitution says: The right of trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts.
First of all, I've seen references of both in every document on the issue I've read. I would note, however, that the same principle can be applied to every power we have - Voting has been often used to defeat freedom, and so was the right to bear arms [the Freikorps and the Sudanese militias are nice examples]. Nearly every right and power we have - from voting to free speech to jury trials to free speech can be used to enslave and harm. The question is how to use our rights to defend freedom. In the past, peaceful defiance, such as that practiced by Gandhi and MLK, jury nullification [like people refusing to convict strippers under decency laws], hunger strikes, and other means of peaceful protest were used to defend freedom. I would argue that the people who engage in such acts are noble souls, who ought to be respected. Whether we should take their route now is a question:a question that we should ask ourselves and really think of instead of just re-arranging our prejudices. |
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The state Constitutional clauses you mention need to be construed in light of what the individual state courts have held. None of these states allow juries to nullify the law. The right to judge the law is a very narrow one, dealing with the "blending" of law and fact referred to in Sparf. And even if this "right" existed at the state level, your original statement that it is a right found in the 6th Amendment is entirely wrong. Nullification is a bad idea. What it requires is that individuals, untrained in the law in any way, are to judge what the law means. Would YOU want 12 housewives, retired postmen, mechanics, elementary school teachers, etc trying to figure out what the law meant if YOUR life or liberty was at stake? No thanks. I'll go with a system wherein the people judging the law ACTUALLY READ IT ONCE BEFORE!!! Judging facts is a relatively simple exercise compared to judging the law. It is why nullification enjoyed a very brief period of acceptance, which has now ended. It ended because in actual use, it worked so horribly. Juries much more often nullified due to prejudice, then to striking a blow for freedom. So, while it could be used for good, it rarely worked out that way. And that is the last I have to say on jury nullification. |
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God, what an elitist point of view. Those same twelve are going to judge me in a trial, but you think they are too stupid to decide on their own, That the law sucks? I would rather have 12 little idiots thumb their nose at the judge than sentence me for having a sawed-off shotgun. |