WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, November 15, 2007

THE RIGHT TO BARE ARMS

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”


This was the HEADLINE
in the Herald:

"Shots fired at cops after robbery at Starbucks."

Were those shots of espresso?

It's actually a very poor joke.

How many officers in Broward County have died in the line of duty this year? 4? 5? And one deputy recovering from a gunshot wound to the head.

There is an epidemic in this country, and it is death by handguns.


The US Supreme Court has never directly addressed the question of whether the Second Amendment guarantees an individual's right to possess a firearm in his/her home.

There is now a request for cert. pending before the court in 07-290 (District of Columbia v. Heller) which addresses that very issue. The case was financed and brought by a wealthy individual at the Cato institute who intended to engineer the case to bring the question to the Supreme Court.

A decision in 1939, United States v. Miller, held that a sawed-off shotgun was not one of the “arms” to which the Second Amendment applied.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Asked during his confirmation hearing what he thought that sentence meant, soon to be Chief Justice Roberts responded that the Miller decision had “side-stepped the issue” and had left “very open” the question of whether the Second Amendment protects an individual right as opposed to a collective right. (We obtained this quote from the
NY Times article of November 13, 2007).

We rarely get beyond questions of interpretation of the disorderly intoxication statute, but to our eyes it seems pretty clear that the right to arms relates directly to the creation of a Militia.

Despite our President's misuse and wasting of military resources, we don't think the 3rd Armored division will soon be in need of our somewhat rusty rifle.

Law enforcement types tend to be the sort of right wing "law and order" Republicans that drive around with bumper stickers stating "when it is a crime to have a gun...only criminals will have guns."

However, as they get gunned down at record rates in Broward this year, just how many more tragedies will it take before something is done? How many millions of unregistered and illegal firearms are on our streets?

We know this is a hot button issue. But here is what we also know: when those thugs who robbed Starbucks started firing at police officers, none of the customers drew their own firearms and shot the latte larceny perpetrators dead.

We guess it's possible to live in a world where everyone walks around with a sidearm. And we agree if that were the case, the principle of mutual assured destruction would probably reduce gun violence.

But absent the arming of the entire population over the age of 18, we think the solution is less guns, not more.

We like to quip that the framers made a typo when drafting the second amendment, and that what they intended was to guarantee our citizens the right to wear short sleeved shirts (bare arms-get it?) But nothing is funny about what has happened in Broward this year.

See You In Court.

47 comments:

Anonymous said...

Rumpole, let's talk law and think like lawyers and leave political opinions for the bar (not the association of lawyers but the place where alcohol is served).

Your post sounds like the classic anti-gun propaganda rant where anecdotal evidence and opinion take the place of legal scholarship, hard facts and lawyerly reasoning.

I suggest you do a search for Second Amendment and read the well-reasoned opinion being appealed by the District of Columbia and also read a few articles by constitutional scholars, specially those who are anti-gun but are intellectually honest, such as "The Embarrassing Second Amendment" from the Yale Law Review.

old guy said...

I cannot wait for the first 2nd Amendment loon who claims that Madison and Jefferson intended for every toothless goon to have an AK-47 in case the Rooskies come over the ridge.

When will we wake up to the idea of MUCH tougher gun regulatons and licensing? When we will stop listening to the crazies who think that gun controls will just give the commies a list of whose house to go to when they take over?

We actually need fewer gang-bangers and Aryan idiots with Tec-9's and Glock 40's.

I do not always like what the cops do + how they treat people -- but I am scared to death of how we are evolving into armed gangs of grownups.

We are anything but 'A well regulated militia'.

Rumpole said...

I am personally not anti- gun. I own firearms. However I cannot ignore the devastation and destruction I have seen over three decades of work that firearms have caused. From children killing their friends and each other with their parent's guns, to 15 year old kids pointing guns at cops because this is what they see at the movies- the utility of guns- the nuts and bolts economic analysis of utility theory (look it up) clearly demonstrates to me that guns should be outlawed or heavily regulated. In the pure cost/benefit economic utility theory analysis, guns lose every time. And being a (semi) rational human being, I attempt to make important decisions on a rational basis.

Anonymous said...

Why is the interpretation of the 2nd Amendment a function of the number of people killed by firearms? Should we change our interpretation of the 4th, 5th, and 6th Amendments based on the SAO's conviction rate? Or the right to a trial by jury based on the availability of jurors? Oh, and by the way, since handguns are illegal in DC, why are there so many gun deaths there?

Anonymous said...

Rump,

At the risk of taking us all on a very big tangent (I also somewhat agree with 10:02 that this subject is generally outside of the field of law and more about politics, but I know that you can talk about whatever floats your boat on your blog, such as those marvelous football picks), I am curious if you can explain this "I'm privately for X , but I'm officially against X" rationale.

We see it most often in the abortion debates where one group exclaims "I personally oppose abortion, but I will not legislate my morality." However, I'm at a loss as to what this even means in the gun debate discussion. The Second Amendment either applies to individuals or it does not. Either the government (state or federal, take your pick) has the authority to regulate the possession of firearms or it does not. You suggest that firearm possession should be limited (it isn't clear how far you would go and I will not assume you are for an outright ban of all firearms), yet you seem to personally possess the very instruments you want removed from private citizens. Surely there is more to your view, such as "well my gun is a .22 but I want .38's banned" or some similar argument? Otherwise, this "I'm for guns while I'm also against them" sounds a bit John Kerryish.

In any event, some of us need to get our football picks in today. Any thoughts?

Rumpole said...

Two excellent comments!!!! I shall endeavor to reply:

1) I am not a constitutional scholar, unless the constitution in question is a bar menu. It appears to me that the 2nd amendment does not guarantee me the right to own a firearm.

2) If my interpretation is correct, then I am all for the government banning or restricting the possession of firearms.

3) Until the government does ban the possession of firearms, I do own a firearm for my protection. I tend to believe that I am well trained it the use and possession of the firearm (is that a hint as to my identity???) and that I am responsible in its ownership. However, I also recognize 99% of people who own guns are probably not as well trained and responsible as I am, and that worries me more than the possession of my gun comforts me. I am willing to give up my gun if all guns are removed from society.

4) 12:26 you are 100% correct- the interpretation of the second amendement has nothing to do with the ills it has caused society. If the amendment guarantees the right to individual ownership- then I am all for a constitutional amendment overturning the 2nd amendement. If it does not guarantee the right to own a gun, I am all for strict laws banning the possession of firearms.

I am neither a Keynesian nor a Kerryian in my social economic views.

Anonymous said...

The Jews in 1940's Europe should have had more guns. Citizens need guns now more than ever. How quickly we are losing our civil rights.

CAPTAIN said...

THE CAPTAIN REPORTS:

November 16, 2005 - November 15, 2007

JUSTICE BUILDING BLOG -
TWO YEARS AND COUNTING

HAPPY BIRTHDAY - HORACE.

CAPTAIN OUT ..........

Juan Mourin said...

I agree with Rump on this one. While the great and amazing thing about our constitution is that most of the rights and protections afforded to us are just as crucial today as they were then, the 2nd Ammend. is clearly an exception. I can't envision a scenario where, in this day and age, it would be possible for the people to form a militia for the purposes of taking on invading army. Similarly, i don't think we would have very much luck engaging the U.S. military in the event that we felt the need to rise up against our own government. The bottom line is that the reason the 2nd. Ammend. was ennacted are longer no longer applies in the year 2007.

Anonymous said...

The cities with the most restrictive gun laws have the highest rates of gun violence while places like Wyoming, Idaho, New Hampshire, etc have very little gun crime and everyone is legally armed.

Maybe its not guns, or gun laws, but the culture of a place that determines the levels of violence.

Reversal of the Week... said...

Appeal's Court reverses Judge Lawrence D. King in a per curium decision. Link here.

http://www.courthousescandal.com/Appeal%20decision%20Reversed%20Nov%209%202007.pdf

The details of this case were reported on this blog a few months back at: www.courthousescandal.com

Some on this blog agreed that Judge King sould be reversed and some disagreed.

Anonymous said...

ps. the appeal's court awarded the appellant attorneys fees for the appeal.

Anonymous said...

Old guy said:

"When we will stop listening to the crazies who think that gun controls will just give the commies a list of whose house to go to when they take over?

If you want to call historians and the historical record "crazy" you do so at your own peril of being considered ignorant of history.

If you knew a bit of history, you'd know that, inter alia, the Nazis, the Bolsheviks and the Castroites already used gun control and registration lists to go door to door and confiscate the firearms of the people in order to consolidate their respective dictatorships in Germany, Russia, and Cuba. If you knew history, old guy, you'd know that every major genocide of the past century was preceded by confiscatory gun control of the people who were later slaughtered. Don't forget that those who ignore the mistakes of history are bound to repeat them.

Anonymous said...

Rumpole, we don't need gun control, we need criminal control. To praphrase you, "the utility of" criminal control"- the nuts and bolts economic analysis of utility theory (look it up) clearly demonstrates to me that doing criminal control has a doubly utilitarian control: it makes the streets safer and brings us more clients.

Anonymous said...

Under your utilitarian theory we should ban cigarettes, alcohol, and any cars capable of driving faster than the speed limit.

Let's leave the Second Amendment alone and recognize its value in the Bill of Rights and in the careful framework designed by the Founding Fathers to protect our liberty from generation to generation.

Anonymous said...

The first ten amendments to the US constitution are there to protect PERSONAL rights against state encroachment.

It would be strange to learn now that the second amendment is really there to protect the state against individuals.

Honest liberals like Lawrence Tribe get it right. The second amendment is a personal right, and there's a reason why it comes right after the guarantee of free speech.

Anonymous said...

If one agrees that the constitution can be interpretted according to an originalist/ textualist methodolgy, there are some great points on both sides. First, could the Framers have foreseen an era with firearms that were shorter than one's arm? If not, then a total ban on handguns seems constitutional. Similarly, under the same logic, could they have forseen F/A's with high-capacity magazines? If not, then it seems that anything other than shotguns and rifles could be banned.

For an authoritative (but brief) discussion on these issues, see Akhil Amar's piece at:

http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+103+(Spring+2002)

PS: Could Rumpole's training in firearms stem from, perhaps, a past life at the SAO? If memory serves, each ASA is offered a CCW license and F/A training when they start at the office. Hmmm.

Rumpole said...

2:17 -when the German Panzars rolled into Poland no country on earth had a tank able to stop them. All the hand guns in the world would not have stopped the Holocaust.

Anonymous said...

Rump, if you were on the stand testifying about the Second Amendment, you'd be impeached with what you and I recognize in the biz as a prior inconsistent statement. In response to my post on the second amendment you gave the following response:

"Thank you 12:17 for a well reasoned critique. I am a strict constructionist, and believe the second amendment protects nothing more than a citizen's right to wear short sleeve shirts. (Right to bare arms...get it??hahhah).

Actually, your argument is philosophically correct, ignoring for the moment the late Supreme Court Justice Holmes citation to Emerson: "A foolish consistency is the hobgoblin of little minds."

I agree that the second amendment is the law of the land. However, how many deaths will it take until we address this epidemic? Kids kill themselves with their parents guns every year. We have three south florida law enforcement officers killed in the line of duty with guns within the last few months. Unlike Cancer or AIDS, we know the disease, we know the cure. Remove the guns and the gun violence stops. Civilized Countries have done just that and the results are uniform. There are not armed gangs running around England or Japan terrorizing unarmed civilians.

So, because I agree that one cannot pick and choose to enforce only those aspects of the Bill of Rights they like, I guess the first platform for the Rumpole For President campaign would be repeal of the 2nd Amendment." (Friday, September 14, 2007 1:14:00 PM)

While today you claim the Second Amendment does not protect individual rights, you seemed to agree with me on Sept. 14 that it does.

Look, the Second Amendment, like many of the other amendments in the Bill of Rights, talks about the "right of the people . . . ." You have to do some serious legal gymnastics to read something into the Second Amendment that is not a "right of the peole . . ." The right of the people is, well, the right of the people. Very Simple.

Anonymous said...

"The Jews in 1940's Europe should have had more guns. Citizens need guns now more than ever. How quickly we are losing our civil rights."

Are you kidding me? This is one of the dumbest comments I've read in a while.

First, you really think armed citizens could've stopped the Nazis? The Germans crushed the French army (not mention several others) and scored major victories against the allies despite the fact that they were armed to the teeth.

Second, unless you're advocating that we take up arms against our country, arming ourselves will not change how the government handles our civil liberties.

You sound like you're running for office rather than making a serious point.

Anonymous said...

Just read the Judge King slap in the face. Do I see Third DCA potential in the written opinion?

Anonymous said...

Rump..you call yourself a defense attorney???

Anonymous said...

Yesterday someone said;

"What would suck is if the defendant went to trial, and was found Not Guilty. At that point, he couldn't have case expunged.

Thursday, November 15, 2007 11:03:00 AM"

Let's say my client pled to a w/h adjudication was put on probation and the State agreed to Nolle Prose the case after restitution is made.

So full restitution was made the Court as agreed vacated the w/h and the State Nolle Prose the case. Will this case qualify for a expungement based on your comment above from yesterday?

Basically the case now shows as a Nolle Prose case, but at one time before case was vacated it was a w/h guilt with probation.

Anonymous said...

If we're going on strict constructionist thinking, haven't we already 'infringed' on individual's rights to bear arms? There are certain types of guns that are illegal to posess, there are qualifications as far as permits and registration.

Anonymous said...

BONDS INDICTED.

How long before Jose Canseco comments?

Anonymous said...

Perhaps the second amendment is an evolving amendment? Maybe we need to be able to keep and bear anti-tank missiles. SAM sites in your back yard?

Pacificus said...

In every state there is a militia. It is called the National Guard.

Anonymous said...

Speaking of Poland, Rump, I seem to recall that the courageous Jewish fighters of the Warsaw Ghetto uprising took on the SS and Wermacht with a grand total of maybe 130 pistols and rifles they managed to hide from the Nazis, who had been very effective in imposing gun control.

fake john locke said...

Rumpole:

You, of all people, should know that the Second Amendment was written to defend individual rights. As I pointed out in a previous post, the men who wrote the Second Amendment were the descendents and cousins of the English non-conformist Protestants who had convinced King William to allow that "the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law," in the Rights of Man signed after the Glorious Revolution in 1689. The influence of this document on our own Constitution and Bill of Rights cannot seriously be debated. Maybe you are just a Tory like everyone says.

Anonymous said...

4:17pm had the best point yet. Can sny gun grabbers dispute it?

abe laeser said...

No one killed my grandparents, aunts, uncles, and older sisters because they were on a 'gun list'. There was no "confictatory" gun issue. The Nazis acted for the same reasons as the Crusaders and the Inquisition -- they hated Jews.

No one died in Darfur or Armenia or in Nanking because they were listed as a gun owner.

There are no more Bolsheviks or Communists who give a damn about any such lists. They could assume that we all have guns, and still act as they choose.

Gun ownership and use requires civilized people to act reasonably toward each other.

You think that you need an assault weapon, just in case the Martians would be hurt by bullets -that is why therapists make a living.

All I see is that I have lots of job security due to the guns readily available to the young and the ruthless among us.

Please move to Wyoming or New Hampshire - and make my community a little bit safer.

Anonymous said...

Dear Mr. Rumpole: I believe you sir, are shirking your responsibilities to fair moderation by allowing this biased discourse on those opposed to gun ownership, use and possession. The founding fathers were correct in drafting the second amendment. The amount of handgun deaths in today's age is no different percentage wise than the number killed by train derailments, stage coach robberies and food poisoning in the 1700s. Yours truly, Trigger Finger Glock, President, Smith and Wesson.

Anonymous said...

Rump
The National Guard and the reserve are part of the military establishment, BUT, they are not the Militia. Article X section 2 of the FLA Constitution defines ther Militia as ALL ablebodied individuals who are or who have expressed their intention to be citizens. Clearly that means US, THE PEOPLE. Therefore WE THE PEOPLE have the right to bear arms. The People in Pakistan, Venizuela and Bhurma/Myamar have no such rights. I believe in backround checks, but I own firearms and will continue to, its trite but, When guns are illegal I will be a criminal.
D. Sisselman

Fear the government that fears your gun. said...

When guns are outlawed, only outlaws will have guns.

Anonymous said...

Reversal of the week:

No bitch slap here. It is a hollow victory. The only thing reversed was the future rent. You still end up being evicted and paying past due rent. Hoorah for you. The only person who got a profit was your lawyer.

Do you really think we can't read an opinion and understand its import? Time to move on, pal. No scandel here.

Anonymous said...

You all totally miss the point. Once a woman passes the age of forty, she no loses the right to "bare arms" unless she works out five days a week with a punching bag. A man loses the right to "bare arms" whenever he either stops working out or his back and nose hair spread to his biceps. EEEEEwwww Della

Anonymous said...

11:43AM - you missed the point the tenant always agreed to pay the past due rent ALWAY's and the legal fee's of the other side for bringing the eviction. That's why he let it go to eviction. The problem is (now is this moment to grab those glasses and read carefully) that Judge King allowed the plaintiff to get a $45,000.00 additional money judgement without ever asking for it in the complaint or amended complaint.

Over and Out.

Anonymous said...

Thurs. 5:54,
Read the statute.
If an information was filed and there is a nolle prosequi before TRIAL, then the person can still expunge. If your guy 'pled' to a w/h, no trial, then was later nolle prossed, he could expunge.

Anonymous said...

hey post the statute or cite that you are reading...specifically on point.

can the State contest or not

Anonymous said...

Civil libertarians of all stripes should read the D.C. gun case. It is well-reasoned and persuasive, and offers important reminders about our Bill of Rights. Git yourself some homemade CLE. It's #04-7041a (Parker, Shelley vs. DC) at: http://pacer.cadc.uscourts.gov/common/opinions/200703.htm

Anonymous said...

Why debate the gun issue. Has any of the intellectuals figured out that perhaps the minimum mandatory sentences presecibed by the intelectual ginats we send to Talahassee is causing the violance. Go figure, a perp who comits a crime with a firarm is looking at practically a life sentence, without any releif valve. Come on folks, what has this person left to lose. Just food for thought.

Anonymous said...

Friday, November 16, 2007 5:41:00 PM

I want to hire you to get a case expunged

how do I reach you?

Rumpole said...

Hmm...lets see..Just call me. 305....nope wait...hmmm...hahahahhaa. It's going to take a little more money than that to have me reveal my identity. Go to Mr. Markus. He should be able to handle a state court expungement.

Anonymous said...

Not you Rumpole as the odd's (given your writing skills) of getting laughed out of Court increase by retaining you.

j/k

Anonymous said...

which markus there are two

Rumpole said...

j/k- "odds" cannot be possesed so it's "odds" not "odd's" jackass.

Anonymous said...

Jackass very classy. Do you kiss your mom with that mouth?