Second Amendment Protection Act

[Frank Ettin]

It is only on of a few ways to nullify a law. The easiest and most available to the common man is jury nullification.

Don't be silly.

Jury nullification does nothing to nullify a law. The law exists and continues to exist and can be applied.

It 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.

On occasion the reasons for an acquittal against the weight of the evidence and law could be noble. But the reasons may also be ignoble, 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.

As to being easy, that's hardly a foregone conclusion. 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. Thus what might be characterized as an ultimate remedy can be preserved for only the most egregious cases.

While a single juror can generally cause a hung jury, and hung jury merely results in a mistrial; and the defendant can be retried.

 

[Suthern1]

And yet the multi million dollar pot industry has done in Colorado exactly what this Kansas man did by relying on state law contradictory to Federal statute. And no one says squat. Am i wrong?

 

[Suthern1]

Is'nt this the same line of reasoning that allows Texas to continue to mfg incandescent bulbs after they was banned at the federal level?

They're not sold out of state.
Now I understand I just compared light bulbs to suppressors but that really should not matter legal if it holds up for 1 it should for the other.


at least that's my understanding correct me if im wrong.

Cross one border into Colorado and smoke a bowl of marijuana then come back to Kansas and manufacture a silencer and see what charges you are brought up on. Hey its a valid argument.

 

[Frank Ettin]

And yet the multi million dollar pot industry has done in Colorado exactly what this Kansas man did by relying on state law contradictory to Federal statute. And no one says squat. Am i wrong?...

Yes, you are.

Colorado and several other States may have made the recreational use of marijuana legal under State law. And several more have made the medicinal use of marijuana under State law.

However, under federal law, the Controlled Substances Act, marijuana is a Schedule I controlled substance which can't be lawfully d prescribed, possessed or used. So anyone using marijuana, even if legal under state law, is violationg federal law.

Under the Constitution, federal law trumps state law (Article VI, Clause 2):

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Thus far the federal government has exercised its prosecutorial discretion and not rigorously prosecuted marijuana use. However, that is a matter of policy and not law, so it can change at any time.

Also. since any user of marijuana is an unlawful user of a controlled substance under federal law, even if the use is legal under state law, he violates federal law (18 USC 922(g)(3)) he he has a gun or ammunition.

...come back to Kansas and manufacture a silencer and see what charges you are brought up on. Hey its a valid argument.

It didn't work for Shane Cox and Jeremy Kettler who made suppressors in Kansas and were then were convicted in federal court in Kansas for violating the NFA.

 

[Suthern1]

How am I wrong and everthing you said agrees with me?
You seem to have made exactly my point Frank. That Federal law is only enforced at the discretion of Prosecutors. This however does not exempt people who break one law and subject another who breaks another law.

A prosecutor has not the authority to waive an offense do they? They simply decide if they are going to prosecute for the offense.

Which prospect in itself being politically or monetarily motivated is an offense to there oath of office and the constitution.

Dot get me wrong I'd rather have weed and silencers legal but the fact is neither is under Federal Law. So lets not be bias and prosecute all crime or none is my point. PS I like the old light bulbs better also...

 

[Frank Ettin]

...Which prospect in itself being politically or monetarily motivated is an offense to there oath of office and the constitution. ...

Can you cite legal authority to support that conjecture? The reality is that the doctrine of prosecutorial discretion is well established in American law. It reflects the reality that (1) persons accused of crimes have a constitutional right to a speedy trial; and (2) resources available to prosecutors and courts are limited. Prosecutors out of necessity must have discretion as to how to use the limited resources available.

Courts have rarely found fault with an exercise of prosecutorial discretion, and then only when the party objecting has been able to show by clear and convincing evidence both a discriminatory effect and a discriminatory purpose.

....So lets not be bias and prosecute all crime or none is my point....

If that's your point, so what? That's not the way things work, and the world will continue on about its business without regard to your opinions.

 

[Suthern1]

I can cite the case law to you yes but wait... did we skip over something?
How was I wrong again?

Anyway the fact is that if you say I must be 18 to smoke and 21 to drink alcohol and I smoke and drink at 17 then I have committed two offenses. In that instant discretion is appropriate and I may be prosecuted for one or the other instead of both. However if you say I "shall not" grow weed or make suppressors and i do one someone else the other there is no legal basis for which you may discriminate against me because one is "less offensive" in the public political view than the other. I would certainly argue clear and convincing discrimination if I were in that situation.

BUT... I think you missed the discussion here. If you want to put on a legal argument rather than a discussion I would be willing to do that. But here because that argument would be moot what my point is does matter regardless of how things work... in your view. "Necessitate discretion on how resources are spent" That a poor reasoning if ever there was one. Can you point to the morality statutes that divine what offense is better for the public to be prosecuted. Does that statute specify between sexual assault of a child and rape of an adult and which takes financial priority??

You cant shut down someones point of view because they dont prove a hypothetical but somewhat obvious motivation to you. For that matter where is your proof that Unicorns dont exist?

 

[Frank Ettin]

....You cant shut down someones point of view because they dont prove a hypothetical but somewhat obvious motivation to you. For that matter where is your proof that Unicorns dont exist?

It's about reality. We try to discuss how things work so that we can understand how things work. People tend to have all sorts of notions about how they think things should work, but all those notions really don't help understand reality.

How the law and the legal system work will affect the lives and property of real people in the real world. Your points of view and $2.00 will get you a cup of coffee at Starbucks.

 

[Suthern1]

Ok I can stay within that frame.

So the reality is that because these discussions are never had nothing ever changes. The reality is 2$ wont buy my coffee and the reality is that a billion dollar illegal industry is going on full force right under the nose nay snubbing its nose at the Federal Government and that Government does nothing according to its "policy" but would rather prosecute an individual whom it knows will not have the public support or media attention.

The reality is that the legal system is not a justice system.

 

[Frank Ettin]

...So the reality is that because these discussions are never had nothing ever changes....

Many things have changed since the founding of our Republic and not because of discussions of anonymous denizens of cyberspace. If you want to change things, get out into the real world, get politically active and see if you can sell your vision of how the world should be out there in meatspace.

And if you want to do away with prosecutorial discretion, how do you propose dealing with the result? How would you distinguish the prosecutor's decision not to pursue a criminal charge because in his exercise of professional judgment he's concluded that here was insufficient evidence to convict from an exercise of discretion? Will the prosecutor now have to spend his time defending every decision not to prosecute instead of spending his time prosecuting crimes he can convict for? And how will we pay for the expansion of court and police capacity.

...The reality is that the legal system is not a justice system.

Of course not. In any case what is "justice"? Your idea of justice? What if someone else has a different idea? In The Republic Plato describes Socrates and his students trying valiantly but unsuccessfully to define justice.

In Shaw's Major Barbara, Andrew Undershaft (the millionaire maker of cannon) is in conversation with his son, Stephen:

... STEPHEN [rising and looking at him steadily] I know the difference between right and wrong.

UNDERSHAFT [hugely tickled] You don't say so! What! no capacity for business, no knowledge of law, no sympathy with art, no pretension to philosophy; only a simple knowledge of the secret that has puzzled all the philosophers, baffled all the lawyers, muddled all the men of business, and ruined most of the artists: the secret of right and wrong. Why, man, you're a genius, master of masters, a god! At twenty-four, too!...

Since the dawn of civilization, and probably before, people everywhere have been continually struggling to reach a common understanding of "justice", "morality", "love", "right and wrong." They are generally unsuccessful, except with regard to the most extreme circumstances. Sure, murder is off the table; but when does killing someone morph from murder to justifiable homicide. We can generally agree that it is wrong to steal the property of another; but how do we punish a man stealing bread to feed his starving child.

That's where law comes in. While people are struggling unsuccessfully to reach a common understanding of "justice", "morality", "love", "right and wrong", we still need a way to resolve disputes without tearing the fabric of society asunder. We might not all be able to reach agreement on "justice", "morality", "love", "right and wrong", except on occasion at certain crossing points, but in the real world we must still be able to get on with life.

Perhaps a true common understanding of "justice", "morality", "love", "right and wrong" will come to us in Heaven. But in the meantime we'll need to try to get along as best we can with the tools we have.

 

[5whiskey]

So the reality is that because these discussions are never had nothing ever changes.

These discussions happen all of the time. I would tarry to say that they do not happen often enough amongst those who have the power, position, and authority to make real changes. You or I do not have that power. I understand exactly what you're saying and where you're coming from. The Federal Government is ignoring one class of felony while going full-bore on another. In essence, it does not seem fair on the surface. It's a lot more nuanced than that. Public opinion of marijuana has changed to such a degree that prosecutors will have a hard time getting any conviction on any amount of marijuana from a jury of 12. I have personally seen it. My last trail where we underwent jury selection was a drug trail. During Voir Dire, the prosecutor purposefully threw out that "this isn't marijuana, I understand the culture shift in feeling on marijuana, but this isn't that. It's "crack" cocaine." Needless to say, there are VERY few felony trails that involve marijuana even at state levels these days, at least in my state. If you are aware that there is at least a 50/50 chance that any jury you seat will nullify the law (especially for personal use of marijuana, or even for sales in states that have legalized it and the seller pays taxes on his income), why waste the resources needed on a 50/50 gamble even after you prove the offense beyond a reasonable doubt? Unfortunately public opinion on firearm regulations differ from public opinion on marijuana laws. Especially for "silencers." THIS IS OUR CURRENT REALITY