Jury nullification.

I'm with you Alan and SecDef. It's a peaceful means of protest..and so far we haven't seen a VIABLE alternative to nullification.
 
You've now made it obvious that JN should be the first means to assert rights, only LATER moving to where I am putting liberty at risk. You start with low risk and move to higher risk and costlier options.

The founders would disagree with you. Nullification does NOTHING to change a law. Jury nullification does not assert any rights. It merely delays the inevitable. Even with double jeopardy, if a person is assrested for the same conduct again, they will again to to trial. It simply doesn't accomplish anything.

If you want to assert your rights, then change or challenge the law. Without doing this you are just spinning your wheels. Its completely nonsensical. Even if you nullify, your "rights" are still being violated because the law is still there preventing you from doing what you want to do.
 
which is why we WANT it to be a last recourse. It's scope is too narrow to effectively change law in any meaningful way.

The other resources available really suck:
1) Vote someone in that is NOT beholden to you whatsoever and HOPE they write laws overriding or reversing laws you disagree with
2) Break the law in question in order to hopefully get it into appeals.

I'm saying there is sparse recourse.

* As I alluded to in other posts, there are many levels of public servants that in the end, don't actually represent ME. And those representatives that actually DO listen to their constituents are ripped apart for being weather vanes. It's odd, and I'm not really sure how I feel about it.
 
which is why we WANT it to be a last recourse

But thats the point. Its NOT a recourse. If you have enough people to change the law then you have enough people to change the law.

If anything, nullification takes away the right of the accused to legally chalenge the law since they hvae been acquitted.
 
Stage, will you answer these two questions:

Can a law be "validly passed" and at the same time be "way out of bounds"?

Can enforcement of a law made without authority be "proper"?

We seem to agree that 922(q) is way out of bounds, and I believe that has implications regarding your previous comments about laws which are "validly passed and properly enforced."

I'm going fishing with my realtor this morning, and will inquire about rental properties near a school. I already have a FL CWP and numerous guns. I still need a lawyer.
 
BTW, my office is within 1,000 yards of a school property, which I pass every morning. Do I still have to rent another place?

I say "property" because the school buildings were destroyed by hurricane Charlie, and are being rebuilt, so it's actually a school construction site at the moment, and not an operational school.
 
Can a law be "validly passed" and at the same time be "way out of bounds"?

Can enforcement of a law made without authority be "proper"?

The answer to both questions is "Yes"

The legislature has the right to pass “laws” as it sees fit. These “laws” are valid and enforceable until challenged and reversed in the courts or until the legislature themselves reverse them.

On the question of how to get a law reversed without being arrested to contest it in court, there are several answers. One is to start a petition to get it on a ballot and vote it out of existence. Another is to vote in representatives and hope they will realize they were elected to meet a mandate of their constituents. Another way, if you don’t want to be the “test subject” is to find someone who has been arrested under the statute and support his defense all the way through the appeal process. (Think $$$. With no guarantee of the outcome you want)

I already have a FL CWP and numerous guns.

Check out 922(q)(2)(B)(i) & (ii). It looks to me like you are covered as far as Title 18 USC Chapter 44 goes. Local law may say otherwise, but that's a different discussion.
 
The legislature has the right to pass “laws” as it sees fit. These “laws” are valid and enforceable until challenged and reversed in the courts or until the legislature themselves reverse them.
Jurors have the right to vote as they see fit.

That sounds to me more like a description than a justification. The legislature is the creature of the people with certain delegated powers, and jurors are the people. Why shouldn't the people sit in judgement on the question of whether the politicians have exceeded their mandate?

Really, I think we could hand a Fully Informed Jury Association handbook to every juror in every trial, and not much would change. We could even have the judge sit up there and say, here's how I understand the law that applies in this case, and you jurors can take it or leave it, and not much would change. Only a really unpopular law would be subject to much effect if we did everything we could to encourage jury nullification, instead of doing everything we can to discourage it.

That's why I earlier brought up the example of Ed Rosenthal. His State government had said that what he was doing was OK. His local authorities had deputized him in an effort to protect him from prosecution. The question of whether the federal law under which he was being prosecuted was constitutional in such cases was unresolved, and soon made it to the Supreme Court in the Raich case.

Check out 922(q)(2)(B)(i) & (ii). It looks to me like you are covered as far as Title 18 USC Chapter 44 goes. Local law may say otherwise, but that's a different discussion.

Spoilsport. I don't want to be covered! Now I have to find another aggrieved victim of persecution for my challenge. ;)
 
"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision." CJ John Jay Georgia v. Brailsford, 3 U.S. 1 (1794)

To accept the above as "merely" the recognition an inherent dichotomy of our system is to negate the following:

"If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty." (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

As seen above, the power of the Jury was to provide a check against even the Judges authority and powers. The power of the Jury to be finders of both Fact and Law was a power that was understood by all at the time of the founding. This wasn't controversial as Jefferson, Franklin, Hamilton and many others supported this view.

At the time of the founding the most popular law dictionary of the time, Jacob's Law Dictionary, explicitly stated that a criminal petit (trial) jury's role was was to decide both questions of fact and law.

The historic role of the Jury can only be ignored, when a Court decides that the words of the Constitution mean something other than was meant at the time it was signed and voted into existence. We find that the Court has done exactly this on a number of occasions, with a number of passages of the Constitution (Commerce Clause, "General Welfare Clause" - to name two, anyone?).

A brief History of Jury Nullification
The power of the jury to judge the justice of the law and to hold laws invalid by a finding of "not guilty" for any law a juror felt was unjust or oppressive, dates back to the Magna Carta, in 1215.

[Thus,] at the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact.

Until the middle of the 1800s, federal and state judges often instructed the juries they had the right to disregard the court's view of the law. (Barkan, citing 52 Harvard Law Review, 682-616) Then, when northern jurors began to refuse to convict abolitionists who had violated the 1850 Fugitive Slave Law, judges began questioning jurors to find out if they were prejudiced against the government's position and dismissed any who were. In 1852 Lysander Spooner, a Massachusetts lawyer and champion of individual liberties, complained "that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government. ... The reason of this ... was that 'the Fugitive Slave Law, so called' was so obnoxious to a large portion of the people, as to render a conviction under it hopeless (if the jurors were taken indiscriminately from among the people)." Modern treatments of abolitionism praise these jury-nullification verdicts for the role they played in helping the anti-slavery cause – rather than condemning them for "undermining" the rule of law and the uniformity of justice.

In 1895, the Supreme Court, under pressure from large corporations, rendered in a bitter split decision that courts no longer had to inform juries they had the power to veto an unjust law. The giant corporations had lost numerous trials against labor leaders trying to organize unions. Striking was against the law at that time. "Juries also ruled against corporations in damage suits and other cases, prompting influential members of the American Bar Association to fear that jurors were becoming too hostile to their clients and too sympathetic to the poor. As the American Law Review wrote in 1892, jurors had 'developed agrarian tendencies of an alarming character.'..." (Barkan, Jury Nullification in Political Trials, 1983)[emphasis added]

Despite the courts refusal to inform jurors of their historical veto power, jury nullification in liquor-law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky, jurors often refuse to convict under the marijuana-prohibition laws).

As time went on fewer incidences of jury-veto actions occurred as the courts began concealing jurors' rights from American citizens and falsely instructing them that they may consider only the facts as admitted by the court. Researchers in 1966 found that jury nullification occurred only 8.8 percent of the time between 1954 and 1958, and suggested that "one reason why the jury exercises its very real power [to nullify] so sparingly is because it is officially told it has none." (California's charge to the jury in criminal cases is typical: "It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I shall state it to you . . . You are to be governed solely by the evidence introduced in this trial as the law as stated to you by me.") Today, no officer of the court is allowed to tell the jury of their veto power.

Not only do the Courts not tell Jurors the extent of their powers and duties, but much, if not all, of this has passed from the teaching of Law. See also Jury Nullification: The Evolution of a Doctrine by Clay Conrad and Clay S. Conrad 1999.

Now, as far as this being an actual "right," it is not. At least, not anymore than a state has "rights." It is however a power, inherent in the system of Juries that we have inherited from English Common Law.

It is the power of the people to veto the government when it enacts laws that thwart justice. That is its sole purpose. It was exercised during the abolitionists era. Again, against Big Money and corporations who tried to prevent strikes. Against prohibition. Against the Vietnam war and the protestors.

It is in fact, the last check against government gone wrong. Should the government succeed in removing this power from juries, there is only one check left for a free people.
 
SecDef said:
That's exactly why I keep following this thread.

Having to break a law just to be able to contest it is awkward at best.
You can thank the legal community for that one. It used to be (once upon a time) that you could just challenge a law, now you must have "standing:" i.e. be arrested for violating the law.

Oh, publius? I'm here. I just take my time.
 
Al, given that there is nothing in the constitution regarding the power of juries, and both the fed and states have the express power to establish courts and the rules that govern them, is it not then a correct statement of the law that in places where the jury is instructed to be only a finder of fact, that they are limited to this power.

Furthermore, given judicial precedent, what john jay said some 200 odd years ago probably has been overruled by implication to some extent. Whether people agree or disagree with this isn't the issue. Just as easily as Jay wrote this into law with his opinion, other decisions have written it out. There is no such thing as federal common law, so pointing to the history of english tradition doesn't really help for todays purposes.
 
Under the law they don't.

You mean because they were read a set of instructions.

But is not Article 1, Section 8 of our Constitution a set of instructions? And under those instructions, Congresscritters can't just "vote as they see fit" as was said. They have certain enumerated powers. There are boundaries.

If the Congress steps "way out of bounds" and "votes as they see fit" outside of their delegated authority, how is that acting "under the law"?
 
But is not Article 1, Section 8 of our Constitution a set of instructions? And under those instructions, Congresscritters can't just "vote as they see fit" as was said. They have certain enumerated powers. There are boundaries.

But preventing jury nullification is easily within these boundaries. Its completely within the power of congress to do so.

If the Congress steps "way out of bounds" and "votes as they see fit" outside of their delegated authority, how is that acting "under the law"?

If they do step out of bounds, its the job of the supreme court to reign them in.
 
Why reining in the runaway horse (Kings reign, ya know ;)) the sole province of the SC?

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

The exigency may suggest and prudence may justify resorting to other means.
 
In order to reply in an intelligent manner, I must break down the arguments into its components.

STAGE 2 said:
Al, given that there is nothing in the constitution regarding the power of juries,

Given the fact that the power(s) of the Jury was a known and commonplace thing, that it was not defined within the Constitution should not lend an opinion one way or another.

It can be expressed thusly: The Constitution lays out the framework of a central government. It expressly grants certain powers while implying that all other powers belong to other parties, be they state governments or individual citizens. The Jury, not being a governmental construct, is left undefined. That being the case, we must needs look elsewhere for any such definition. The (now) 800 year history of the Jury in common law is the place where the answers reside.

... and both the fed and states have the express power to establish courts and the rules that govern them,

Rules and procedures that govern a court (a government construct) do not necessarily govern a non-governmental agency. Nor should it. Consider, for a moment, voir dire. It has a very dark history.

It started with the Fugitive Slave Act, as noted in the "brief history." A judge would question the jurors, before seating them, to discover if they held anti-government views. This is in fact, Jury Stacking. This has evolved to what we have today. Many in the legal profession consider it a fair way to discern the discriminatory views of an individual, and excuse that individual if his views are contrary to that of the prosecution or defense. But. The Judge still has a role and gets first "crack" at questioning the perspective Jury pool.

Despite the assurances of the legal profession, we still have the government, in the form of a Judge and a prosecutor, having two attempts to stack the Jury against the defense.

This all became precedent, during the 1850's. A precedent with a dark and evil beginning. A precedent that became doctrine, that should never have been allowed in the first place. It is anathema to the practice of a having a "fair and impartial" Jury despite the assurances of the legal profession to the contrary.

... is it not then a correct statement of the law that in places where the jury is instructed to be only a finder of fact, that they are limited to this power.

No.

Under what express grant of authority does a legislature or a (on a lessor note) Court have that that makes such a determination? If it is not an express power granted by the Constitutions of the central government or the States, then it is a usurpation of power.

The question of States Constitutional Powers, can wait for the moment, however.

There is no such thing as federal common law, so pointing to the history of english tradition doesn't really help for todays purposes.

Actually, there is. And it does.

The Constitution is silent upon Juries, their composition (other than the number of members) or their powers.

Art. III, section 2, clause 1: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,

Nothing in the above detracts from the common law powers of the Jury. There is, however, an implication of those powers, albeit for civil trials: Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VII establishes a Federal Common Law as regards a certain aspect of the operation and power of the Jury. By an explicit statement, an implicit understanding is preserved. Juries operate under the Common Law and neither Federal statute nor Court regulation may change this. To do so is an usurpation of power.

Having pointed this out, we can now move on to the States themselves. Any State statute or Constitution that violates the Federal Constitution (Supremacy Clause; Art. VI, clause 2) is null and void.

The only other determining factor here is the notion that by moving away from these Constitutional norms, simply shows how far our governments have deviated from those express and implied powers, set forth in the defining document for the structure of our governments.

publius42 said:
If the Congress steps "way out of bounds" and "votes as they see fit" outside of their delegated authority, how is that acting "under the law"?
STAGE 2 said:
If they do step out of bounds, its the job of the supreme court to reign them in.

Theoretically, this is correct. At least since Marbury v. Madison has never been overturned.

On the more substantial and practical level, the Court has long fallen upon its own laurels. When a Court is able to pick and choose which cases and controversies it will take and which it will not, many decisions are left up to the inferior courts. The Second Amendment is just one aspect where the Court has abdicated its responsibility.

Which brings us right back to:

STAGE 2 said:
Furthermore, given judicial precedent, what john jay said some 200 odd years ago probably has been overruled by implication to some extent. Whether people agree or disagree with this isn't the issue. Just as easily as Jay wrote this into law with his opinion, other decisions have written it out.

Since John Jay quoted the Common Law, as enshrined in the Federal Constitution, writing this out is an act of usurpation of power by the Courts, aided and abetted by the Federal Legislature and the Federal Executive.

The Law is the Law. We either hold to that highest law, the Constitution of the United States, or we do not. Regardless, even in spite of, what you perceive or were taught. Stare Decisis is mere doctrine. Where it conflicts with dogma (The Constitution) it should hold no weight whatsoever.
 
Wow, I think I've found my lawyer. You want to work on my challenges for free, Antipitas?

Wait, before we go too far, I should mention that I'm a huge fan of lunch, and I do wonder what it is you have against pita bread? ;)
 
Oh, Al...I was waiting for you...isnt this a great thread?

I'm giving you almost 100% correct on your analysis on your last post, except for this:

Stare Decisis is mere doctrine. Where it conflicts with dogma (The Constitution) it should hold no weight whatsoever.

I beg to differ. Stare decisis is nothing more than a logical and philosophical recognition that once an issue is determined, it is determined. It's an extension of judicial, legal and philosophical finality, and is in fact a rule of analysis or a guideline for orderly change, if change is indeed required.

I'm going to start with this premise: flawed as it may be, the present US system of laws and government is, examined in light of history, the best government the world has ever seen in terms of human safety and freedom. No matter what your bitch may be about political qua legal issues on whatever side of the spectrum you may be from, you will all still recognize that at any given time in the good old USA you have access to the Courts (and a good chance to win too), a free and obnoxious press, you can vote, pick your candidate, protest him and not have to worry about a Black Maria coming for you in the middle of the night for a trip to the Lubyanka and 9 grams in the basement.

Our system is unique too becasue of the Constituion and what is does with respect to our government in terms of vying for power. Government is power, and to deny that fact is to proclaim yourself an Anarchist (which I reckon is OK too if thats your bag) and for power to be properly excersized over a polity and by a polity mandates that its implementation be both orderly and deliberative and not a product of whim or caprice. Once the process becomes disorderly and subject to whim or caprice, well, the cosequences have been historically seen, sometimes for bad. To use an anology from Chinese philosophy, one could call say that a good government has the Mandate of Heaven, once the government turns bad, that madate is withdrawn.

In Great Britian, in the 16th and 17th century, power was vested in the executive, with the legislative branch (the commons) excersing essentially tribucian power. There was no "independent" judiciary to nullify that tribucian power when same was excersized improperly, not did it act to check executive power when it thwarted the tribucian power.

Our system on the other hand, was designed to, or to be more accurate evolved into, a system that disspated or diluted the power of the executive and legislative via an independent judiciary. The written vehicle to define the rights and duties of these three branches of Federal Governement, was the constituion, a document lacking in Great Britian.

As our constituion could not, under any stretch of the imagination, deal with ALL of the necessary issues involved in day to do life, the common law of England was necessarily absorbed wholesale by the states and the Feds either as a codification or by way of intepretation. That common law includes the doctrine of stare decisis (Blackstone itself is stare decisis) which acts as a CHECK on the power of the judiciary in order to ensure that the arbiter of power limits its own power.

Stare decisis of course is a two edged sword...as it can thwart change from a model in accord with what is as opposed to what should be. On the other hand, it is equally a rule that precludes whim and caprice. As in aside it's funny how some some folks will scoff at stare decisis yet spout that the second amendment cannot interfer with one's "natural" right to self defense..of course, where does that "right" come from. Stare decisis.

So how does this all pertain to jury nullifcation. Simple. The essense of the argument by us "anti nullifiers" is that it entails disrespect for the system. The system itself is designed to dilute governmental power and the law as codified and interpreted using doctrines such as stare decisis does dilute that power. In essence, you have the power of the government versus the power of the law and in order for governemtn to be orderly, decisions, whether political, legal or judicial, must be made under the rules then and there existing. Only when those rules are MANIFESTLY unjust or unfair BECAUSE of the system should those rules be broken.

I pointed out earlier in the thread the historical background of jury nullification in Great Britiain in felony cases under the common law. Jury nullification WAS appropriate there, due to the excersize and allocation of power in Great Britain at the time and the lack of an independent judiciary. On the other hand, where, as here, you have remedies after remedy after remedy in a framework that is both certain yet at the same time changeble, nullification, if permitted renders the entire framework, designed for orderly determinations, useless.

I refer back to the case cite earlier about nullification. Nullifcation was never designed to thwart the the rule of law over a petty annoyance. In fact, one of the problems indeed of our modern legalistic society is the whole disregard by EVERYONE including all three parts of governement as well as the people of the axiom de minimus non jurat lex.

Bottom line: When you have a vehicle for change given to you, it should be driven, not disregarded. To lie (becasue thats what you have to do) to thwart governmental power and deny the excersize of that power a full hearing prevents the sytem from adapting and if necessary changing.

WildfingersoreAlaska
 
Your seeing in action why this Board is the best around...even in legal and political...most of the time. :D

WildhamburgersforlunchAlaska
 
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