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I see by Google today that a man at the Washington Post thinks the Supreme
Court was off its rocker the other day when it upheld the Second Amendment of
the Constitution and the right of citizens to own and carry arms. The writer
begged to remind the justices that guns in the household meant a greatly
increased chance of accidents and thefts, for the results of which the Court
would now be responsible. This was not very relevant, though, for what the
Court was deciding was not the question of the risks involved in gun ownership,
but the meaning of the Constitution as generally understood. This might be
attended with some inconvenience, as the saying goes, but there are many rights
in the Constitution which have this drawback.. Free speech, for instance. It
's often abused. Free elections. They always give trouble. Religious
freedom. Very inconvenient sometimes. And so it goes. Nothing's perfect, I'm
afraid. Such is life.
Two ideas from Justice Scalia's opinion jumped out at me although I was only
skimming his sixty pages. One was about the meaning of the language in the
Amendment that the right to bear arms was contingent on the necessity of
having a well-regulated militia. To anti-gun people this means that only militia
members should have the right. I don't think so. It strikes me as more of
a "whereas" clause in the enactment. "Whereas" clauses are common in all
speeches and resolutions and legislative bills. They can be very specific as
in a bill authorizing a Panama Canal or a railroad to be built or they can be
very general as in the Preamble to the Constitution, which lists no less
than six reasons for its creation, all of them extremely noble and high-minded.
Looked at in this light, I see the "militia" phrase as some window dressing
for the purpose of following normal procedure by presenting a plausible
reason for a legal enactment. It was the expected thing to do and still is.
There was a logical connection, of course; people used to bearing arms would be
good candidates for enlistment. There would be a pool of such prospects.
But as Scalia said, it was even more likely that arms would be useful for
hunting and self-protection. If they were to be restricted to the militia, it
would have been easy to specify this in the Amendment. It wasn't done.
Americans wouldn't have stood for it and everyone knew it.
It was true that in the Seventeenth Century the British Crown restricted
arms to those eligible to join militias approved by the party in power, but this
still didn't mean they had to join to have arms and America's wide-open
permission for arms in the hands of people able to join or not join any militia
at all meant that the right of arms was an individual one and militia
enrollment was not necessary. Today the Court finds that's still the case.
I now shift from Justice Scalia to another judge, from a lower court and no
longer living who had some important things to say about subjects related to
the one I've been lecturing on. His name was Harold Rothwax and he sat on the
New York State Supreme Court. He wrote a book called "Guilty; The
Collapse of the Criminal Justice System."
Once again I haven't completely vetted a book I've decided to write about
in this space. Instead I've cherry-picked my way through it looking for
tidbits to serve up to the public. I will eventually read it in full, but I haven'
t yet. But my truffle-hunt hasn't been all waste. For instance I find an
old hobby-horse of mine, the misuse of the "presumption of innocence" gets
attention from the judge . He was writing soon after the Simpson trial, a kind
of a judicial Jonestown as far as horror shows go. No bodies littered the
courtroom, but the busted precedents, legal abuses and phony arguments filled
it up. Through the smear tactics of the lawyers a lot of people got the idea
that maybe there had been a "rush to judgment" to try Simpson on flimsy
evidence. Not so.
Judge Rothwax disposes of that claim and simultaneously the "presumption"
by pointing out that prosecutors don't really want to waste their time
indicting people whom they don't believe are probably guilty. A lot of people seem
never to have thought of that. The judge reminds us that "reality screens"
exist to weed out the innocent from the guilty before any trial is held. As I
've often pointed out, these are the witnesses, the victims, if any, the
arresting officers, the committing magistrates, the district attorney, and even
the jailers responsible for confining the accused. All of these have to
believe the defendant is "probably guilty" or they have no right to detain him
for the next step in the criminal justice treadmill. And they have no
obligation anytime to give him the benefit of the presumption of innocence.
The judge goes on to point out that this is a trial presumption only, just
as the Chief Justice of the United States, Warren Burger, did in my hearing in
1969 at Lincoln Center. The only people required to presume a defendant's
innocence are the trial jurors, no one else. If only the TV and media
blabbermouths could have this taught to them, the B.S. index would decline like the
Dow Jones in a recession.
Judge Rothwax knew all the tricks -- he'd been a criminal lawyer himself,
never a prosecutor, and tricks are what he calls them instead of daring
innovations and brilliant strategies in defense of society's victims, the
underprivileged uneducated youth facing a future of hopelessness and turning to crime
as the only way out of the misery and deprivation to which they've been
condemned by the system. Rothwax left all this out of his book. Instead he has
stories about the shenanigans of lawyers going to ridiculous extremes in
their zeal to preserve their clients from the punishment they deserve. There are
a lot of these stories, but I only have room for one: It's about a "
missing witness" charge that a lawyer sought when a robbery victim refused to
return from Belgium to testify against her client. This charge permits the jury
to conclude that the reluctant witness would have testified against the
prosecution. However it came out that he had told the lawyer he would accuse her
client if he returned but still wasn't coming. Rothwax asked her, "Doesn't
your own testimony belie the inference you're seeking?"
"Yes", she said, "but my client is entitled to it." Entitled to mislead
the jury, that is.
The judge concludes "When it is proper to say in a court of law that a
defendant is 'entitled' to mislead a jury, you have to wonder." |
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