But wait, mentioning that is my First Amendme... oh, nevermind.

I have a CHL and carry a gun with me almost every waking moment but i see nothing wrong with this gag order. If he was deliberately funneling guns to criminals then this is illegal irregardless of the scope of the 2nd amendment. The facts this case needs to determine have nothing to do with the individuals right to bear arms.

oh come on, at least play within the goddamn rules, NYC.

SilentStrider: oh come on, at least play within the goddamn rules, NYC.

See comment directly above your reaction.

Failing_Junk: If he was deliberately funneling guns to criminals then this is illegal irregardless of the scope of the 2nd amendment.

you're getting ahead of it. he's innocent at this point and until the verdict is released. he claims he was following the law, and he may well be right.

he has the right to present a defense, and that defense should be what he believes is necessary to fight the charges. it's odd that he would not be able to cite the basic law of our country, the constitution

If the judge does issue this gag order, then it's a slam dunk on appeal if the store is ruled against.

I don't think any US appellate court will think highly of a gag order on the Bill of Rights.

albo: he has the right to present a defense, and that defense should be what he believes is necessary to fight the charges. it's odd that he would not be able to cite the basic law of our country, the constitution

Unless he's arguing that the laws prohibiting the charged conduct are unconstitutional, the 2nd Amendment has no place in the defense. You can certainly be precluded from raising defenses that have nothing at all to do with the scope of the charges and the facts underlying the case - just as the prosecution can be precluded from raising law and facts having no relevance to the matters at issue.

I thank the families Bush and Clinton for this complete unravelling of our constitutional rights.

albo: you're getting ahead of it. he's innocent at this point and until the verdict is released. he claims he was following the law, and he may well be right.

Yes, but the laws in question are about selling guns to criminals, not the 2nd amendment. This type of gag order is intended to prevent the lawyers from making irrelevant arguments to the jury. In this case the 2nd is irrelevant.

It would be like claiming a fundamental right of freedom of movement or travel should be brought up in a hit and run case.

Failing_Junk
Irregardless?

kronicfeld: just as the prosecution can be precluded from raising law and facts having no relevance to the matters at issue.

i see your point, but isn't it a bit unusual to shut off a reference to a constitutional right? i can imagine the judge not allowing the chewbacca defense

albo: i see your point, but isn't it a bit unusual to shut off a reference to a constitutional right? i can imagine the judge not allowing the chewbacca defense

It's not the jury's job to decide what is and what isn't constitutional. That is a question of law, which occurs at a different stage of the proceedings, and is a determination to be made by a judge. The jury's job is to decide facts, and facts alone. The only possible reason for throwing up the 2nd amendment in presentation of evidence or argument before a jury is to try to make the jury make a legal decision, rather than a factual decision.

kronicfeld: The jury's job is to decide facts, and facts alone. The only possible reason for throwing up the 2nd amendment in presentation of evidence or argument before a jury is to try to make the jury make a legal decision, rather than a factual decision.

this is why you're TF's highly-paid thread legal counsel

albo: this is why you're TF's highly-paid thread legal counsel

That was a .2; my invoice will go out at the end of the month.

kronicfeld:

Unless he's arguing that the laws prohibiting the charged conduct are unconstitutional, the 2nd Amendment has no place in the defense. You can certainly be precluded from raising defenses that have nothing at all to do with the scope of the charges and the facts underlying the case - just as the prosecution can be precluded from raising law and facts having no relevance to the matters at issue.

Are you a lawyer? I don't know whether to farky you as "smart about law" or "rational thinker"

kronicfeld: The jury's job is to decide facts, and facts alone.

I can has jury nullification?

Okay, fine then. I guess they'd better not mention Bill of Rights Article XIII, Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

HAH! Got ya now, didn't I! Ruins the whole case, doesn't it ;)

The 2nd Amendment is the most farking outdated thing ever. I have no problem with people owning a rifle, but the kind of firepower available today was never envisioned when writing it back in the late 1700's.

ExJerseyGirl:

Are you a lawyer? I don't know whether to farky you as "smart about law" or "rational thinker"

I guess I'll farky you as "ignores me."

*sniffles*

Failing_Junk: I have a CHL and carry a gun with me almost every waking moment but i see nothing wrong with this gag order.

That sentence is full of fail.

SpinStopper: HAH! Got ya now, didn't I! Ruins the whole case, doesn't it ;)

If they were trying to make some kind of Ayn Randesque argument that the state was enslaving him by denying him his right to sell his goods to criminals a judge would smack that shiat down.

Failing_Junk: I can has jury nullification?

They're absolutely entitled to acquit for any reason, good or bad, or for no reason at all. However, that doesn't mean the defendant - whether in a criminal or civil trial - is entitled to throw in front of them any and every legal theory or policy argument in the hope that they might latch onto one.

ExJerseyGirl: Are you a lawyer? I don't know whether to farky you as "smart about law" or "rational thinker"

I'm a lawyer. My primary practice area is family law.

I agree with this decision. If the defendant has a proper second amendment defense it would get dismissed before the trial started. This man is charged with criminal activity in SELLING, not bearing arms.

It is a well settled rule that invoking a constitutional amendment, regardless of relevance, is not a free pass to commit crimes. Judges who have subscribed to this philosophy have been removed from the bench in the past.

If this guy has an issue, he can take it up with the appeals court.

MIguy: I have no problem with people owning a rifle, but the kind of firepower available today was never envisioned when writing it back in the late 1700's.

What exactly are you concerned about that is legal and substantially more powerful then, say a 30-06?

Without knowing anything beyond this article, I don't see what the problem is. The 2nd amendment has no relevance if you broke a law as it relates to selling stuff.

kronicfeld: They're absolutely entitled to acquit for any reason, good or bad, or for no reason at all. However, that doesn't mean the defendant - whether in a criminal or civil trial - is entitled to throw in front of them any and every legal theory or policy argument in the hope that they might latch onto one.

Very true. If they come up with it on their own, then that's ok. But the Chubacca defense is not allowed.

FTA: In the motion, the lawyer for the city, Eric Proshansky, is also seeking a ban on "any references" to the amendment.

"Any references by counsel to the Second Amendment or analogous state constitutional provisions are likewise irrelevant," the brief states.

Fail. Good luck with that one, Mr. Proshansky. Even if you get it excluded from the trial court level, there is no chance it wouldn't get mentioned on appeal.

kronicfeld: My primary practice area is family law.

You poor guy -- I didn't know that. You must be a very, very patient man in real life.

"Guns? What guns?"

The guy wins an instant appeal if the judge agrees to the gag order.


/1st and 2nd Amendments surrender

globalwarmingpraiser: I thank the families Bush and Clinton for this complete unravelling of our constitutional rights.

That's not the worst part. The worst part is going to be the legions of slobbering idiots who will line up to agree with the gag order.

We're throwing away our rights. WILLINGLY throwing away our rights. And as much as it disgusts me, I can do nothing about it.

Weaver95: We're throwing away our rights. WILLINGLY throwing away our rights. And as much as it disgusts me, I can do nothing about it.

Weaver, honest question - what do you say to people who believe there should be no right to bear arms? That we should repeal it bia amendment? I mean, you obviously disagree with them, but would you categorize that as wanting to "throw away our rights"?

Weaver95: The worst part is going to be the legions of slobbering idiots who will line up to agree with the gag order.

What right is being thrown away by not allowing irrelevant arguments to be presented in court?

DamnYankees: Weaver, honest question - what do you say to people who believe there should be no right to bear arms?

I tell them that they should follow the procedures outlined in the US Constitution regarding amending the document in question.

That we should repeal it bia amendment? I mean, you obviously disagree with them, but would you categorize that as wanting to "throw away our rights"?

Hey, if someone wants to try to ratify an amendment annulling the 2nd amendment, that's fine with me. that's why we have a process in place - to discuss that sort of thing in the proper format and allow all points of view to be heard and voted on.

What bothers me is incremental changes at the state and federal level designed to limit rights without oversight. lots of ways out there to limit anything in the bill of rights that basically gut our constitutional protections....just look at the war on drugs for example. we've essentally destroyed the 4th and 5th amendments already. Now we're going to delete the 1st and 2nd amendments.

Weaver95: just look at the war on drugs for example. we've essentally destroyed the 4th and 5th amendments already. Now we're going to delete the 1st and 2nd amendments.

Not to mention the 9th and 10th, especially after Raiche, never mind all the precedents before that regarding farm crops, pharmaceuticals and such.

MIguy: The 2nd Amendment is the most farking outdated thing ever. I have no problem with people owning a rifle, but the kind of firepower available today was never envisioned when writing it back in the late 1700's.

Let's see Congress try to raise an effective militia from people who don't own or have never fired a weapon.

A militia is a "bring your own equipment" kind of deal, for the most part.

Failing_Junk: What right is being thrown away by not allowing irrelevant arguments to be presented in court?

Not allowed? The defense can bring up that Martians told him it was okay to sell guns on alternate Tuesdays if they want to.

tomWright: Not to mention the 9th and 10th, especially after Raiche, never mind all the precedents before that regarding farm crops, pharmaceuticals and such.

The 10th amendment is a really useless amendment. I can't think of any legal purpose it serves.

lelio: Not allowed? The defense can bring up that Martians told him it was okay to sell guns on alternate Tuesdays if they want to.

No they can't.

lelio: The defense can bring up that Martians told him it was okay to sell guns on alternate Tuesdays if they want to.

You fail Evidence

Ielio: Not allowed? The defense can bring up that Martians told him it was okay to sell guns on alternate Tuesdays if they want to.

You forgot your IANAL tag. Although I suppose the comment makes it pretty plain by itself.

MIguy: The 2nd Amendment is the most farking outdated thing ever. I have no problem with people owning a rifle, but the kind of firepower available today was never envisioned when writing it back in the late 1700's.

Well, yeah, and governments didn't use to own tanks,either.

tdpatriots12: MIguy: The 2nd Amendment is the most farking outdated thing ever. I have no problem with people owning a rifle, but the kind of firepower available today was never envisioned when writing it back in the late 1700's.

Let's see Congress try to raise an effective militia from people who don't own or have never fired a weapon.

A militia is a "bring your own equipment" kind of deal, for the most part.

Make no mistake, the 2nd Amendment was designed and added to the Constitution for a reason. Sure it's dated but it remains for the same reason as it always has: to allow citizens to fight back in case the government becomes tyrannical.

A little history lesson for you people that say the 2nd Amendment is obsolete. There was this little thing called the Revolutionary War. This war was started to break free of a tyrannical king's overbearing government. As a result the 2nd Amendment was born to ensure that citizens can fight against oppression.

Now what about this firepower argument? HMmmmm let's see, should we try and fight back the U.S. Army's sub-automatic machine guns with muskets? I don't see that turning out well for us.

The words of the 2nd Amendment are so powerful, they must never be spoken.

Especially in a court of law.

nu lamb fen: Make no mistake, the 2nd Amendment was designed and added to the Constitution for a reason. Sure it's dated but it remains for the same reason as it always has: to allow citizens to fight back in case the government becomes tyrannical.

Wouldn't this rational require letting citizens own anything the military is allowed to own?

malibupetey: The words of the 2nd Amendment are so powerful, they must never be spoken.

Especially since the Second Amendment has never been incorporated upon the states.

Sorry gun nuts, federalism trumps. Don't like it? Then move to a country where there is one central government and no sovereign state governments.

malibupetey: The words of the 2nd Amendment are so powerful, they must never be spoken.

Especially in a court of law.

Sort of like Chuck Norris's face-splattering roundhouse kicks. He speaks with his kicks, you see.

if you go down the road of restricting a defense because its objectionable you end up running the risk of loosing all rights.

I a case I was involved in, where I published some information, yes the act of publishing was an indictable offense, the federal prosecutor made the specific argument that any first amendment claims should be ignored because they were only made in trial and not earlier! Fortunately there was a regime change around 2000 which caused the government to file a "confession of error" something they NEVER do, and I won my appeal without them contesting it in any way.

Remember and dont be confused with the 2nd amendment, it clearly states "... the right of the people ...", these are the same people who have rights under the first, second, fourth, fifth, sixth, and at least 10th amendments. Just becuase you dont like something does not give cause to say that "people" should be redefined unless you want it redefined everywhere.

Further to change the constitution, even though crazy interpretation, without ratification is unconstitutional. The constitution for example does not give the feds the right to do many of the things they do, or that are proposed, the 10th amendment for example forbids them from national healthcare, that is a state right and should be a state program (and odds are would be easier to get passed on a state level than it would be on a federal one anyway).

You loose rights and powers when you violate the constitution through insane laws (whether this be a state or federal thing, but especially federal). When the base of power is closer to the people, the people can influence it much more. When the federal government violates Article I Section 8 (in conjunction with section 9 and the 10th amendment) they are robbing citizens of their power.

Many states let people vote on laws before they are passed, especially with controversial ones. By presenting a referendum to the people, the people can decide for themselves if they want that law. This is not the case with federal laws. Many states have a process to recall elected officials, this is much more difficult in the federal system. As a result politicians can get away with more abuses on the federal level than is allowed in the state.

I am writing a now 15 page document that covers many of these things, and basically is a "vote for the constitution" campaign, regardless of party or candidate. It specifically rejects partisanship, since to a point you need both sides of the fence. I will post on my fark profile when I am finished with it for those who are interested in reading it.

LocalCynic: malibupetey: The words of the 2nd Amendment are so powerful, they must never be spoken.

Especially since the Second Amendment has never been incorporated upon the states.

Sorry gun nuts, federalism trumps. Don't like it? Then move to a country where there is one central government and no sovereign state governments.

What are you talking about? The Constitution is more powerful than state law. That's kind of why it's there.

LocalCynic: Sorry gun nuts, federalism trumps.

That's the spirit!

Well duh. Laws have no place in a courtroom.