We have a lot more work to do

I like to imagine that once we reach some critical threshold in the courts the victories will be almost automatic and our opponents will scatter like rabbits at the sight of a large predator. It may be true that we reach that point but we aren’t there yet:

The latest example is a decision late Thursday by the U.S. Court of Appeals for the Tenth Circuit, which said that a criminal defendant may not be allowed to present a Second Amendment defense to a federal jury in Utah. It came after the appeals court granted an extraordinary emergency appeal, called a writ of mandamus, from the Justice Department after the district judge agreed to allow those jury instructions.

The defendant, Rick Engstrum, has an earlier misdemeanor domestic violence conviction and has been charged with possessing a firearm in violation of a federal law that applies to anyone “who has been convicted in any court of a misdemeanor crime of domestic violence.” He has pleaded not guilty.

(The prosecution arose when Engstrum broke up with his girlfriend, who subsequently told police that he had a gun in his bedroom. Engstrum voluntarily showed police the gun, which he inherited from his father; there’s no evidence he has ever used the firearm, let alone threatened anyone with it.)

Engstrum, reasonably, wanted to argue to the jury that the Second Amendment renders that law invalid, at least when applied to people who show no risk of future violence. (Remember, this is a Utah jury, which raises the odds that jurors are familiar with the right to keep and bear arms, and may even have heard of the concept of jury nullification.)

The Justice Department rejected this idea out of hand. By a 2-1 margin, a Tenth Circuit panel agreed, concluded that the Second Amendment didn’t apply, and prohibited those jury instructions. “If the case proceeds to trial, the district court is directed not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction,” they wrote.

The defense isn’t allowed to even bring up the Second Amendment.

We need incorporation and then we need to attack a whole barge load of infringements one tiny step at a time. The Heller decision was just the tiniest of steps in the right direction.

There is a lot of work ahead of us.


3 thoughts on “We have a lot more work to do

  1. I will admit that I do not understand that degree of judicial wrangling in the slightest bit… When it comes to the law of the land, how is it that a judge can actually tell a lawyer that the lawyer cannot present his arguments based on a certain law? And when it comes to “laws of the land”, what is more supreme, basic, or elementary than the Constitution? The Circuit panel might as well have said, “We do not care what the Constitution says, you cannot present any argument based off it at all.”

    And yet they get to keep their jobs, while simultaneously having selective blindness to the Constitution and basic human rights. As ways to determine whether or not a judicial system is broken go, this is a pretty good one.

  2. If you read the ruling you will find it appears to be a matter of timing. The question of whether the Heller decision invalidates the law in question is uncertain and needs to be clarified at the Supreme Court level. If the prosecution were to lose the case, after allowing a Second Amendment defense, they could not appeal because of the prohibition against double jeopardy. Hence the Supreme Court would not get a chance to clarify. If the defense loses they could appeal not be allowed a Second Amendment defense and the appeal could go back up to the Supreme Court for clarification.

    Other cases may be a little different.

    I asked my lawyer (now state appeals court judge) cousin about this sort of thing once many years ago. She said that the way it works is that even if the defense were to prove their point it wouldn’t make a difference in the way the law decided the case.

    For example, suppose an anti-abortion activist injures or kills an abortion doctor. They claim they were defending innocent life (the fetuses) from being killed. The law allows deadly force to be used when protecting innocent life, therefore they were within the law to injure or kill the abortion doctor. Assuming the abortions were within the law the judge would not allow such a defense. The reasoning would be that, yes, deadly force can be used to protect innocence life in general the innocent life in jeopardy from the abortion doctor is not protected by law. The acts of the doctor were perfectly legal hence using deadly force to stop him was illegal–even if he did harm innocence life. Hence the doctor was “innocent life” and harming him was not legally justified.

  3. What kills me is that we need incorporation in a case like this. A local man tried to sue the City of Norfolk for violating his Second Amendment rights. The judge dismissed it because he said the Second Amendment only applies to the federal government and federal law. Yet incorporation is needed to allow someone charged with a federal crime to use the Second Amendment for his defense.

    I just wish I could meet the judge from Chet’s case here in Norfolk and ask him why, if the Second Amendment applies to the federal government only, guns are banned on most federal property.

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