HAPPY NEW YEAR 2023

 Courts are closed Monday January 2, 2023.  But we are working. A Miami legal blogger's work is never done. 

If you are not a long time and careful reader, then you are preparing for a trial that you allowed some apparition in black robes to schedule for you. Sucker. You 1) ruined your holidays by having to prepare for the case; 2) were set up to walk into a buzz-saw of judicial and prosecutorial resolutions to get tough on crime. 

Oh, there's no such thing as a trial tax. No No No. Defendants do not get punished for exercising a constitutional right to have the prosecution prove their case beyond a reasonable doubt. Nope- it's just that little theater the judge and prosecutor innocently engage in as the jury is outside....

Judge: "What's the current plea offer?"

ASA: "Two years' probation. But as soon as that jury walks in, the state is going to seek fifteen years"

Judge (to defendant) : "I don't know anything about the case. But do you understand you can settle your case today for probation, but if convicted- and I have no idea what is going to happen- you face fifteen years?"

That little charade tells you all you need to know about the "so called trial tax" If you're set for trial on Tuesday....shame on you. Those people who sit a few feet higher than you would like nothing more than the word to spread that defendants better not risk a trial in their courtroom. It makes that 4pm spa appointment a little easier to make. 

SOME GOOD SECOND AMENDMENT NEWS 

Meet Mr. Rico Marley.  He took these guns into his local Publix in Atlanta. 

Shockingly he was arrested. Why, we cannot fathom. Just a simple American bringing an arsenal into his supermarket, just like the founders foresaw: 

John Adams: We need a second amendment for guns. 

Thomas Jefferson: Why do we need that?

Adams: Because in the future society will be less agrarian and more centralized in cities and I think those Americans of the future will need to have their right to bring their personal protection into markets which I think, in the future will be called something like "big market" or maybe even "supreme markets" or something like that. 

Having spent ten months in a Georgia jail, the case was dismissed when it became clear to prosecutors that Mr. Marley did not commit a crime under Georgia law. He is currently under indictment in federal court for a misdemeanor of reckless endangerment. 

Elections have consequences and laws have meanings. When legislators run on second amendment "gun rights" for all Americans to have their god given right to carry a gun anywhere they choose, then people should not be shocked when guns are carried into  supreme-markets, hospital delivery rooms, movie theaters, and childrens' playgrounds. People are only doing what the law allows. 

And those mass shootings are all fake anyway? Right? Like Global Warming and fair elections. Fake news. 

Happy New Year- and one last word on that. It is January 2. We will give you today. After today- NO MORE HAPPY NEW YEAR WISHES. No more emails from Dewey Cheetum and Howe and all of their staff wishing us a Happy New Year and by the way did we know that they are now available to handle all your first party insurance storm disaster claims? Should we have such a case to refer, we will never refer it to any law firm that clogs our email in box with insipid holiday email messages. That is so 1999 digital marketing strategy. Grow up and get a snapchat and twitch account will ya? 

Coming this weekend: Requiem for a Dolphins team. 

GUNS

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.

There are two things that apparently drive our loyal readers to write comments on this blog:

1) Talitha Leacock's use of the FACDL Listserv; and 2) The Second Amendment.

The Miami Chapter of the FACDL met today and our sources tell us that the board decided: 1) Dues are really important; and 2) Orlando is a neat place to hold meetings.

On to the Second Amendment.

Almost all of the first ten amendments are written with an identifiable subject that is then modified.

"Congress" shall make no law respecting the establishment of religion... (1st)

"Soliders" shall not be quartered in a home in time of peace without consent of the owner....(3rd)

"People" shall be secure in their homes....(4th).

And a well regulated "Militia" is needed for the security of a free state. (2nd).

In 1776 the Pentagon didn't exist. The Colonies didn't have standing armies. What they had were citizen-soldiers.

What did a Militia need? Armed citizens. Thus, and this is just so clear, the Second Amendment guarantees that citizens will be armed...for what? FOR THE MILITIA.

There were no drive by shootings in 1776. Or drug dealers. Or Ghettos. Or gang violence. So why in the world do we ask Judges to try and divine what a bunch of middle aged-slave owning white men thought about current problems that are ripping our society apart?

The Center For Disease Control estimated that in 2000 in the US there were 53,277 deliberate and 23,237 accidental non-lethal firearm injuries. That's 77 THOUSAND Citizens injured every year. in 2003 there were over 30 THOUSAND gun related deaths.

In 2002 3,012 children or teenagers were killed by firearms. That's 8 children a day; 1 every three hours; more than 50 each week and more than 200 every month. The rate of firearm deaths among kids under age 15 is almost 12 times higher in the United States than in 25 other industrialized countries combined. (Centers for Disease Control and Prevention) American kids are 16 times more likely to be murdered with a gun, 11 times more likely to commit suicide with a gun, and nine times more likely to die from a firearm accident than children in 25 other industrialized countries combined. (Centers for Disease Control)

The overall firearm-related death rate among U.S. children younger than 15 years of age is nearly 12 times higher than among children in 25 other industrialized countries combined. Source: Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report, 1997;46:101-105

Why in world do we care what Hamilton or Jefferson thought about the right to bear arms? Guns in their world and guns in our world have absolutely no correlation.

Based on interpreting the plain language of the Constitution, or based on an overwhelming social issue that the political institutions of our society cannot remedy (See, Brown v. Board of Education) the Supreme Court's recent decision on the Second Amendment ranks right up there with Plessy v. Ferguson. Both decisions were politically based and driven by ideology.

We're off to the Vineyard tomorrow. We will have a 4th Of July post up before the weekend.

If this girl had a gun, she probably would not have been attacked.

SECOND AMENDMENT SHOWDOWN

The Supreme Court is scheduled to resolve a conundrum they haven’t addressed in over sixty years: How can they look at themselves in the mirror every morning having voted to stop the re-count in Florida in 2000?

No, seriously: just what does the second amendment mean and what does it protect?

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear high powered semi-automatic weapons shall not be infringed.” Or something like that.

Here is the question on Nino Scalia’s mind: “Its Monday, are they serving baked chicken again in the Cafeteria?”

The reason Judge Scalia is worried about what he eats is that as a self proclaimed “semi-strict constructionist” his judicial philosophy might well lead him to a result his conservative friends will abhor and will give him heartburn. And if his conservative friends get upset, no more free hunting trips.

Lets take a look at the two parts of the Second Amendment:

Part I:
“A well regulated militia, being necessary to the security of a free state" - a strict constructionist would call this “the purpose clause”, meaning the reason for the language to follow.

Therefore, interpreting the amendment is simple- once the army is well funded and armed, the purpose of the amendment has been satisfied. The term “well regulated militia” must refer to something more than a bunch of beer drinking guys out on the paint ball course on a Sunday afternoon. (Readers with a knowledge of history will recall that Thomas Jefferson loved, just loved, paintball.)

If you go on the Scotusblog website, you can read a fascinating amicus brief by two professors of English linguistics, HERE
with a specialty in 18th century English linguistics that arrive at the same opinion (albeit more elegantly). While long time and careful readers may question why Rumpole spent his weekend reading amicus briefs in a second amendment case instead of his more usual fare of racing forms and football statistical analysis spreadsheets, we shall save that answer for another day and more appropriate forum.

Like the baked chicken in the Supreme Court cafeteria that they serve on Mondays, the simple analysis based on original intent and plain meaning leaves people like Justice Scalia (not to mention his pal and sometimes hunting buddy Dick “shotgun in your face” Cheney ) so unsatisfied. There’s just got to be more.

Part II (the subject clause):

“the right of the people to keep and bear arms”

To “keep arms” must, our original intent theorists suggest, mean personally keep.

But, the liberals reply, the amendment doesn’t just say “keep arms” – it says “keep and bear arms” and as the Justice Department has recognized in an internal memo leaked to Rumpole, “keep and bear arms” plainly refers to “bearing arms” in a military context. Thus the amendment merely provides for the arming of the militia, not everyone else.

You see dear readers, what has occurred here, as in Bush v. Gore, is that the philosophical bent of the various collations of the Justices leads them to conclusions that are opposite to the politics that got them on the court in the first place.

Ginsberg and Stevens and Breyer will all be arguing that strict construction based on plain reading and the framers' intent leads to the inescapable conclusion that the Second Amendment only protects the arms of citizens to populate a militia. And the military being well funded, the second amendment does not prohibit governmental restrictions (or..gasp ..bans) on firearms. The problem is that Ginsberg, et.al., have too much invested in a broader judicial philosophy in almost every other area of constitutional law to carry the strict constructionist banner in this, or any other case.

Thomas and Scalia and Alito and Roberts, are all torch carrying conservatives, and as such, the second amendment’s protection of their Neanderthal backers' right to shoot each other in the face during hunting trips is sacrosanct. Yet a traditional strict constructionist and original intent analysis leads them astray from the promised land: a gun in everyone’s hand.

So what to do?

In Rumpole’s world, this second amendment case is the perfect storm of chickens coming home to roost. Each bloc of the court- liberal and conservative- must use the other side’s preferred method of constitutional analysis to arrive at the conclusion they prefer. Scalia and Thomas must find “life and breadth” as well as “penumbras” (see, Griswald v. Connecticut, and Justice Douglas’s creation of the “right to privacy” in a “penumbra” of the bill of rights) in the simple phrases they are reviewing, while Ginsberg and Breyer et.al., must argue for original intent to protect the government’s right to regulate firearms.

This is just too good to be true. It’s a game of constitutional chicken and the first one to blink is the first justice that abandons their judicial philosophy and admits to being result oriented.

Who will blink first?

SUPREME COURT GRANTS CERT

BREAKING BLOG NEWS

The US Supreme Court has granted certiorari in DC v. Heller (click on case for link to SCOTUS Blog) in which the court will for the first time in 68 years address the meaning of the Second Amendment's right to bear arms clause.

The NY Times article is HERE

It is interesting to note that the Court rejected the issue as framed by both of the parties in the underlying case. When a case is appealed to the Supreme Court, the way the issue is phrased can be just as important as the argument on the merits.

In Heller the court decided to frame the issue itself:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

Rumpole says: This court is rapidly becoming out of step with the American public. The main reason is that the Justice who played the largest role in keeping the court balanced was O'Connor. O'Connor provided the crucial fifth vote for either coalition for the last twenty years, and without her steadying influence on not moving too quickly, and searching for a reasonable middle ground, the court as it now stands is deeply fractured.

Rumpole predicts: Scalia, Thomas, Roberts, and Alito push Kennedy very hard for that fifth vote striking down the law. Scalia is just itching to write an "originalist" opinion interpreting an amendment that has a scarcity of case law and opinions. Whether Kennedy gives him that opportunity, and whether Roberts assigns him the opinion is another matter altogether.