That’s how State v. Neis (Wis. Ct. App. July 15) (appeal decided by one judge sitting alone), puts it. I’m not sure that the phrasing, especially the “only,” is optimal. But I take it that the court simply means that it is bound by a precedent that it finds to be unsound.
The issue is whether a trial court that is considering a defendant’s guilty plea (here, in a domestic violence misdemeanor case) must inform the defendant that pleading guilty would mean the defendant will lose his right to own a gun. Earlier Wisconsin decisions had held that, while a court must inform the defendant of the “direct” consequences of a guilty plea, it need not inform him of the “collateral” consequences, and the loss of the right to keep and bear arms is only a “collateral” consequence. This judge is skeptical about those precedents, though he is obligated to follow them:
The distinction between direct and collateral consequences as determinative of the constitutional validity of a plea seems to be problematic. “The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent.” State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). State v. Brown, 2006 WI 100, ¶29, 293 Wis. 2d 594, 716 N.W.2d 906, speaks of a “full understanding of the charges against [the defendant].” A full understanding of charges against Neis would include that by pleading guilty, Neis would lose the right to possess a firearm, and would be prosecuted for a federal crime if he did so. This is a significant enough right for United States and Wisconsin citizens that we have included it in both constitutions. It is difficult to conclude that this right is nonetheless so insignificant that it is only a “collateral” consequence of pleading guilty to a disorderly conduct charge. But that is all it is. See State v. Kosina, 226 Wis. 2d 482, 489, 595 N.W.2d 464 (Ct. App. 1999).
ruuffles says:
We?
July 16, 2010, 12:51 pmUrso says:
This strikes me as odd, as the “controlling precedent” is simply a court of appeals case. Can’t he simply disagree? Or is Wisconsin law that courts of appeals are bound by decisions of other courts of appeal unless and until they’re overturned by the Wisconsin SC?
If so, this strikes me as an overly rigid concept of stare decisis. Especially if a decision by a single judge, sitting on a one-man appellate panel, can bind all future trial and appellate judges in the state.
July 16, 2010, 1:12 pmShelbyC says:
That’s similar to fed. circuit courts, right? One panel binds all future panels, and district courts.
July 16, 2010, 1:25 pmMichael Ejercito says:
That is true.
A full en banc hearing could override a panel, though.
July 16, 2010, 2:20 pmMichael Ejercito says:
I should also add that due to the retroactive application of the Lautenberg Amendment, the court should inform people that pleading guilty to any crime gives Congress the power to strip the convicted of any and all rights, subject only to the limitations of the Eighth Amendment.
July 16, 2010, 2:22 pmcboldt says:
Behold! Justice!
July 16, 2010, 2:41 pmA.W. says:
well, i think its weird he just doesn’t overturn it if he thinks its wrong, but….
look, i am pretty gung ho on the 2nd amendment, but i don’t think you should have to list ever single stinking consequence of pleading guilty. how does that work?
“And do you understand that your girlfriend might dump you for a handsomer man? do you understand that you will have to tell employers about this?” and on and on and on. if he really wants a run down he shoudl ask his lawyer. and if his lawyer leaves out anything that matters, he should consider a malpractice suit. end of story.
July 16, 2010, 2:49 pmcboldt says:
– i don’t think you should have to list ever single stinking consequence of pleading guilty. how does that work? –
July 16, 2010, 2:59 pmThe law is supposed to list every LEGAL consequence, otherwise a person is not making an informed decision about his/her LEGAL rights.
The law doesn’t fully inform defendants of what’s at LEGAL stake, but that’s okay, it’s the law.
This defendant is screwed anyway. The most he’d get would be a hearing that agreed he wasn’t fully informed, then a trial, then a conviction, and he’s right back where he started. The more intelligent move for this guy is to spend the money on clearing his record.
I don’t think there is a legal way to reverse Lautenberg; and the issue is not going to cause the public to clamor for repeal of the federal law.
The overarching lesson is to temper your trust in what a judge claims.
Bama 1L says:
I don’t see how this could come out differently; i.e., the judge is right when he says he can’t write a principled opinion letting the defendant withdraw his guilty plea. He would have to eliminate the collateral consequences doctrine entirely. You don’t have to tell defendants that by pleading guilty they will lose the rights to vote, travel freely, get licenses they need to work, see their kids after their spouses leave them, etc. These are all fundamental rights. Add carrying a gun to the list. That is, indeed, all it is: yet another fundamental right you forfeit when you break the law.
July 16, 2010, 3:12 pmBama 1L says:
Other defendants have tried to get the collateral consequences estopped but that seems to fail every time.
July 16, 2010, 3:14 pmcboldt says:
In my opinion, the reason judge P. J. Dykman included the radically unconventional disclaimer was selfishness or “guilty conscience” on his part. It serves no purpose as a matter of law, and tends to put the court in a bad light (expressly saying something tantamount to “this is wrong as a matter of principle, but we’re doing it anyway.”)
July 16, 2010, 3:32 pmWhat a wafflepuss.
Pyrrho says:
Yes, under Wisconsin law all published court of appeals decisions are binding to the entire court of appeals, and it cannot withdraw, overrule, or modify language from an earlier court of appeals decision.
However, the cases heard and decided under the one judge procedure are generally minor cases (civil forfeitures and the like) and the Rules of Appellate Procedure expressly provide that they should not be published. I am unaware of a one-judge decision that has ever been published, but there is a generally predisposition towards non-publication even in three-judge cases. Unpublished opinions have no precedential value although they may be cited as persuasive authority (I tend to think of citing an unpublished court of appeals opinion as citing “unpersuasive authority”). Thus, it would be extremely rare that a case decided without a three-judge panel is controlling precedent, if it has even ever happened.
July 16, 2010, 3:35 pmjohnf says:
It is puzzling to me why a defendant needs to be told anything about the consequences, direct or collateral, of a guilty plea. Why do we do this? So if the consequences are too high, he can roll the dice and hope for the best at trial? Whereas if the consequences are minor, he can tell the truth and plead guilty?
I can certainly understand that the guilty plea should be “affirmatively shown to be knowing, voluntary, and intelligent,” but all that needs to be known from a constitutional standpoint, I would have thought, is what the charge is and what his plea means. As to the rest, his lawyer can presumably answer any questions.
I gather the case law goes beyond this, however.
July 16, 2010, 3:47 pmBama 1L says:
cboldt: In my opinion, the reason judge P. J. Dykman included the radically unconventional disclaimer was selfishness or “guilty conscience” on his part.
I thought maybe he wanted to be reelected, but in fact he’s retiring at the end of this month.
July 16, 2010, 3:55 pmJoe Veenstra says:
cboldt said: “This defendant is screwed anyway. The most he’d get would be a hearing that agreed he wasn’t fully informed, then a trial, then a conviction, and he’s right back where he started.”
NOT TRUE. After you’ve practiced law for a while, assuming you get anywhere near a courtroom, you will realize that witnesses disappear, change their stories, memories fade, victims get into their own trouble, victims inexplicably fall back in love with their torturers, jurors and judges change, etc., etc. Given the foregoing, the defendant may have an opportunity to negotiate a plea (or have a trial and get acquitted) that is favorable.
Also, Judge Dykman has been a right and good Court of Appeals judge who is retiring this year. I’ve had some appeals in front of him and talked to him on occasion at special events and he’s always been a decent and jovial fellow.
Joe
July 16, 2010, 3:56 pmSuperSkeptic says:
I completely disagree, even though I agree with you on principle. What would you have him do – completely disregard the settled law? I applaud him for including such a statement. He called bullshit. He should be congratulated. Unfortunately, it’s not his job to correct bullshit – even on principle.
You either want the judiciary to do what it is supposed to do, or you don’t, but you cannot have it both ways.
July 16, 2010, 3:58 pmPyrrho says:
I agree with this. The judge’s duty to apply the law does not include a duty to pretend that the law is right or always creates a just result, or to refrain from making such comments. The idea that this statement is “radically unconventional” is simply incorrect. Court of appeals judges frequently include complaints or criticism of the current state of the law, sometimes as a means of signaling the supreme court to take review of the case if a petition for review is filed.
Furthermore, there is no judge that has ever served on the Wisconsin court of appeals with the integrity, intelligence, or legal acumen of Judge Dykman. It would be completely inconsistent with his performance in his 32 years on the court of appeals to act out of selfishness or any other improper motives. (also, his name is not “judge P.J. Dykman,” the “P.J.” stands for “presiding judge”)
July 16, 2010, 4:11 pmcboldt says:
– you will realize that witnesses disappear, change their stories, memories fade, victims get into their own trouble, victims inexplicably fall back in love with their torturers, jurors and judges change, etc., etc. –
July 16, 2010, 4:19 pmNo argument. But on the facts of this case, as presented in the opinion, the guy made a series of admissions and statements that, I think, preclude a walk back to “not guilty” of slapping his wife.
– You either want the judiciary to do what it is supposed to do, or you don’t, but you cannot have it both ways. –
I want it to do what is right and just. If it isn’t going to do that, then just do the dirty deed.
There’s no legal substance following his whinge.
– What would you have him do — completely disregard the settled law? –
Apply it. If in fact the law binds his hands as he claims, then that’s that. Remove the radical disclaimer and associated rhetoric in FN4. He suggested a legislative solution (as pertains to those who face deportation on a conviction or plea). If the court isn’t going to vindicate a constitutional right, as is the case here, it need only explain why, and it did.
I know I make some pathetic arguments, but I can’t recall including a remark that the argument is pathetic.
cboldt says:
– “P.J.” stands for “presiding judge” –
July 16, 2010, 4:32 pmOops! Thanks for that.
My remarks about “radically unconventional” is a reference to the words used, “unable to write a principled opinion reversing.” I have no quibble with criticism that says the author finds the result unjust, bad cases make bad law, etc. That’s fairly common, and certainly as between a majority and dissent some real sparks can fly.
By saying it is impossible to write a principled opinion that results in defendant (and defendants going forward) having a right to be told a plea results in loss of right to a firearm by operation of federal law, he’s asserting that the opinion that follows is principled, and correct.
If the judge thinks the question merits review by the WI Supreme Court (or whatever the next level of review is), he should say so, directly.
SuperSkeptic says:
cboldt,
I think you might be conflating the two principles that are in tension here. One is the substantive principle, and the other is the judicial principle. I’m sure he could’ve written something spectacularly principled on the subject matter, but the judicial principle prevented him from writing it, because it wouldn’t be “legally correct,” even if it was “correct” in substantive principle.
July 16, 2010, 4:47 pmL says:
IANAWL, but in my state, where Court of Appeals precedent binds subsequent panels, there is a court rule requiring a statement like the one here: “A panel that follows a prior published opinion only because it is required to do so . . . must so indicate in the text of its opinion, citing this rule and explaining its disagreement with the prior decision.” For what it’s worth.
July 16, 2010, 5:03 pmcboldt says:
– I think you might be conflating the two principles that are in tension here. One is the substantive principle, and the other is the judicial principle. –
July 16, 2010, 5:07 pmPerhaps so, and that’s unintentional. I’ve meant to focus “principle” onto the substantive law.
In that vein, I notice that I gave two opposing restatements of the radical disclaimer. On one hand, I restated the phrase as: this is wrong as a matter of [substantive] principle, but we’re doing it anyway. And later, I restated it as: the opinion that follows is [substantively] principled, and correct.
Now I’m scratching my head and wondering if the disclaimer really is amenable to such disjointed interpretations. Or is the second restatement precluded by the phrase “Affirm, but only because”?
Alast says:
Sometimes “right” and “just” are opposing. And right for whom? Just for whom? Stare decisis and binding precedent, like statutes of limitation, serve society by providing stability and predictability on the large scale, at the expense of justice on a small scale.
July 16, 2010, 5:08 pmcboldt says:
– “A panel that follows a prior published opinion only because it is required to do so . . . must so indicate in the text of its opinion, citing this rule and explaining its disagreement with the prior decision.” –
July 16, 2010, 5:14 pmThat strikes me as suitably businesslike for a court. I think the court and public record benefit from a clear statement and explanation, couched in suitably deferential language. In this case, the disclaimer and (what I think is) the rationale at FN4 are not clearly joined.
cboldt says:
– Sometimes “right” and “just” are opposing. And right for whom? Just for whom? Stare decisis and binding precedent, like statutes of limitation, serve society by providing stability and predictability on the large scale, at the expense of justice on a small scale. –
July 16, 2010, 5:28 pmWhile i might be wrong on this, I think the judge does not like the outcome in this case. He also does not like that the outcome of this case is the rule of law going forward.
If I’m right on that, then I’m pleased with the judge’s substantive position. But I’m not pleased if all he does is state it, and then (while he has the microphone) move on and rule against his substantive principle.
And so, maybe my beef is just style, or maybe it is a combination of style and the content of the opinion. FN4 and the separate remark about the right of illegal aliens to be told they risk deportation are interesting; but other than pointing to the legislature, he offers no hope or roadmap for assistance from the state courts.
Maybe what he did is the equivalent of flashing lights and a siren in Wisconsin courts, which are able and willing to fill in the gaps.
All that said, I’d like to know what the benefit to society is, of preserving the rule that a DV misdemeanant does not have the enforceable right to be told that a plea will remove his right to keep and bear arms.
SuperSkeptic says:
I’d say so, at least in this case. And Volokh says: “[] I take it that the court simply means that it is bound by a precedent that it finds to be unsound.”
July 16, 2010, 5:48 pmUsefullyUseless says:
I’m surprised Padilla v. Kentucky didn’t even get a cite. If the court really thought the precedents unsound, the judge could have tried to make the argument that Padilla totally undermines the rationale for the other decisions, and that McDonald v. City of Chicago elevates the RKBA above immigration in terms of important collateral consequences of pleading guilty.
Granted, I’m sure there is some precedent in the state court system saying that even if the rationale for a previous decision is substantially undermined by recent decisions, it still needs to be followed until overruled – but this guy has a fantastic petition for the state supreme court.
July 16, 2010, 6:09 pmSteve says:
That seems kind of weird. It seems to force the court of going through the exercise of figuring out how it would like to decide the case, when it knows all along that there’s a binding precedent.
July 16, 2010, 6:14 pmGaunilo says:
Perhaps the most ironic part of the situation the plaintiff faced on this case is that it happened in a misdemeanor court where there is a barely concealed assumption on the part of the judge, prosecutor, and the jury that you are of course guilty of whatever you are accused of or you wouldn’t be there.
And from my experience, you are in front of a judge that knows almost nothing of the law. In Texas, there is no requirement that a Justice of the Peace be a lawyer, or have any prior knowledge of the law.
You are expected to be a good boy, plead guilty, pay your fine, and move on. Raising any questions about the law is really viewed as a form of causing trouble.
It is astounding to me that one can be stripped of one of the listed guarantees of our bill of rights as the result of anything that occurs in one of these courts. I know when it gets to the appeals courts there is at least a high probability that adults will be looking at the case, but by that time the damage is usually done, and the law moves on and pretends that due process has taken place.
July 16, 2010, 6:24 pmBama 1L says:
Indeed, in Padilla Scalia, dissenting, foresaw defendants seeking to withdraw their guilty pleas because of federal laws disarming them.
Has the Padilla remand been decided? The Court did not decide whether he had been prejudiced and I think there is a good argument that he was not.
July 16, 2010, 6:37 pmBama 1L says:
What I am trying to say is that Padilla says you have received ineffective assistance of counsel if your lawyer doesn’t tell you about some important collateral consequence of your guilty plea. It doesn’t say your guilty plea was therefore not knowing, intelligent, and voluntary. Did this guy even have counsel?
July 16, 2010, 6:42 pmShelbyC says:
@Guanilo, are you the guy with the imaginary island?
July 16, 2010, 7:33 pmGaunilo says:
No, that’s my cousin Guido.
July 16, 2010, 8:07 pmMichael Ejercito says:
No, it is not.
The Fifth Amendment only prohibits denying people their rights without due process of law.
Due process has already been followed in these cases. The federal government’s only limitation for what it may do to convicted criminals is the Eighth Amendment, and there is plainly no precedent that forbidding convicted criminals from possessing firearms constitutes cruel and unusual punishment.
If convicted criminals want their rights back, they should either appeal their convictions or seek pardons.
July 16, 2010, 9:50 pmDaniel Chapman says:
Heh… speaking of Wisconsin Disorderly Conduct DV cases…
July 16, 2010, 9:59 pmJohn says:
Do you think a State can tell convicted felons that they are henceforth not allowed to comment publicly on matters of public concern? That they are henceforth subject to searches without probable cause or reasonable suspicion? That the government can henceforth take their property without just compensation?
Sure, you might lose some rights for a period of time (while you’re incarcerated you can’t keep arms, you are subject to searches, you may forfeit certain property). But it’s an entirely a different story to say that you essentially forfeit the entire right for the rest of your life.
July 16, 2010, 10:05 pmDaniel Chapman says:
I’m as pro-gun as the next guy (well, not if the next guy is John, apparently), but there’s an obvious difference between the first amendment and the second as it relates to criminals. I have no problem with Mumia writing his books, but I’d rather not allow him to have a handgun. We can argue about the value of restricting the rights of felons vs. misdemeanants or whether it should be for violent crimes only or whether there should be a way to have your rights restored, but to pretend that the RKBA is equivalent to free speech in this context is just ridiculous. You’re not helping your case.
July 16, 2010, 10:21 pmJohn says:
I am not suggesting that RKBA is of equal or greater importance than the First Amendment or any right for that matter (although I see no a priori reason to say that it is less important. Even if we assume that it is the least important individual right (per Heller/MacDonald) in the Bill of Rights, I think it would still be an exceptional feature to say that the government could completely deprive you of that right for the rest of your life based on a single felony conviction.
The real point is that Michael’s “it’s just due process” analysis is simply wrong. We don’t say that a State can take property without just compensation so long as it provides “due process” (see Stop the Beach). The rights in the BoR aren’t applied absolutely, but when we apply strict scrutiny, for example, that’s not coming from “due process,” since the rights in the BoR themselves aren’t really life, liberty, or property.
For what it’s worth, I don’t own a gun and I wouldn’t lose any sleep if we repealed the Second Amendment. I would, however, lose sleep if we just ignored it or relegated it to some previously-unknown inferior constitutional status simply because it doesn’t seem like a good idea anymore. My concern is for the integrity of the rule of law, not for some wahoo (whether convicted of a felony or not) with a firearm.
July 16, 2010, 10:37 pmDaniel Chapman says:
I wasn’t talking about “importance,” I was talking about the fact that there is an obvious safety concern with allowing criminals to possess guns. The fact that your posts don’t seem to recognize that fact is rather disturbing. You’re not helping your case.
July 16, 2010, 10:47 pmJohn says:
Daniel, I guess what I am wondering is why the safety concern matters? Is the disarming of felons (not just those who have committed violent acts or crimes involving firearms) justified by a compelling state interest in safety? Is that what you’re saying? Or does it just provide a rational basis for prohibiting all felons from ever possessing a firearm, thereby passing constitutional muster? That is, how does the dangerousness of guns affect the constitutional anaylsis, not just our intuitions?
In short, I find the following syllogism unpersuasive: (1) Guns are dangerous. (2) The Second Amendment protects guns. (3) Therefore, we should not apply the Second Amendment to X because that would be dangerous.
July 16, 2010, 10:57 pmDaniel Chapman says:
1) Felons are dangerous 2) The State has an interest in keeping dangerous people from possessing weapons 3) Therefore, felons have forfeited their 2nd amendment rights.
“The Constitution is not a suicide pact,” and rights are not absolute.
July 16, 2010, 11:01 pmcboldt says:
I think Daniel holds one of the following.
July 16, 2010, 11:03 pmEx-felons will, if allowed to have guns after release, perpetrate more violent acts. That is, making it illegal for them to possess a gun will reduce the crime rate attributable to released felons.
Or he holds that the above set of beliefs is believed by a majority of the public, and certainly by the policy makers and opinion-formers. IOW, whether or not the statement is true is irrelevant, if the perception exists, it is counterproductive to fight the false perception.
Daniel Chapman says:
I’d be open to arguments that the lifetime firearm bans should be loosened… I definitely don’t approve of applying it to DV misdemeanors, but John doesn’t even seem to RECOGNIZE society’s interest in keeping weapons out of the hands of people who have proven themselves to be dangerous.
July 16, 2010, 11:06 pmcboldt says:
The legal argument is trivial. Assert that a ban on felons in possession is long standing practice in US history; pull up a few quotes that support that; declare the matter settled. Ex-felons (except favored ones singled out by Congress) have no right to a firearm, in fact, are prohibited from one.
July 16, 2010, 11:07 pmJohn says:
Fair enough, that just doesn’t sound like any constitutional analysis I ever learned. Must be a Yale thing. In all seriousness, I totally get where you’re coming from, and I am sympathetic. I am just not sure it’s quite that easy.
On that note, I will have to call it an evening. Take care!
July 16, 2010, 11:07 pmcboldt says:
– I’d be open to arguments that the lifetime firearm bans should be loosened –
July 16, 2010, 11:13 pmI think the burden belongs on the person who is reducing civil liberties, to justify the reduction.
I’m not familiar with the literature on ex-felons in possession, but many of them are non-violent infractions. That should be an easy statutory change, but it won’t (or wouldn’t) be.
The “long standing” assertion is easy to check – again, I’m not familiar with the literature, but do recall reading a case yesterday (linked somewhere) that the ex-felon in possession law was certainly post 1951.
On the practical side, a determined ex-felon can get a gun easily, and even more destructive implements. The law only deters the honest ex-felon.
Daniel Chapman says:
It’s called a “balancing test.” You learn about them in most law schools, but apparently Yale is a particularly good one so I bet they teach it too. Even the most fundamental rights can be taken away if the state has a “compelling interest” and the law is “narrowly tailored” towards that interest.
July 16, 2010, 11:14 pmcboldt says:
– Even the most fundamental rights can be taken away if the state has a “compelling interest” and the law is “narrowly tailored” towards that interest. –
July 16, 2010, 11:17 pmIIRC, the law doesn’t even get to the test. You had it right, ex-felons don’t have the right, end of discussion.
The balancing test only comes in when it affects those who do possess the right.
Daniel Chapman says:
Now we’re talking about legal philosophy… I believe the right to bear “arms” exists for all “people,” but congress has passed a law (a long time ago) criminalizing the possession of certain “arms” (firearms) by a certain class of “people” (felons). The reason that law is constitutional is because it passes whatever level of scrutiny is appropriate for the 2nd amendment… I’m not here to argue about what that level should be or whether the current Felon in Possession law meets it.
July 16, 2010, 11:24 pmcboldt says:
– The reason that law is constitutional is because it passes whatever level of scrutiny is appropriate for the 2nd amendment… –
July 16, 2010, 11:41 pmI don’t know the cases where ex-felon in possession has been tested. My remark about skipping the balancing or scrutiny test comes from recollection (often faulty) of a case that described a balancing test, then said “but we need not get to that, because this person doesn’t have the right.”
A historical/legal (or fake history/legal) argument stands ahead of the policy and balancing test.
The policy and balancing test is used for the people (or objects, now there is a “in common use” test to make it constitutional to move certain arms out of the 2nd amendment ambit) who are not excluded by the historical/legal sieve.
Steve2 says:
Ah, the two lies whose popularity justify bloody revolution.
July 16, 2010, 11:57 pmSuperSkeptic says:
And you learn that they can justify literally anything. Just ask John Yoo – or, for that matter, Justice Black and Fred Korematsu.
July 17, 2010, 12:27 amOrenWithAnE says:
Spot on. That’s the problem with committing MDV — you stand a decent chance of being convicted of MDV.
July 17, 2010, 12:36 amDaniel Chapman says:
I’m sure there’s another thread where you can go argue against the use of balancing tests in constitutional law. That’s not what we were talking about, however.
July 17, 2010, 1:16 amcboldt says:
Found it – See District Court Upholds D.C. Registration …
July 17, 2010, 1:35 amThe two tier approach was against types of firearms, not categories of person. This is a District Court opinion, currently on appeal.
Daniel Chapman says:
I don’t think that quote supports the argument you’re trying to make, cboldt… They’re saying that “assault weapons” are are not protected by the 2nd amendment, they don’t have to decide whether the particular government interest is sufficiently important. No right is infringed. If you skip past that hurdle and assume the weapons in question ARE covered by the 2nd amendment, do you look at whether the PERSON is “oustide” the 2nd amendment’s protection or would you do some sort of “intermediate scrutiny” balancing test?
I think that court would say you do the balancing test. Everyone has 2nd amendment rights… even felons. The state just has a sufficiently compelling interest in restricting their access to firearms.
July 17, 2010, 1:53 amcboldt says:
– If you skip past that hurdle and assume the weapons in question ARE covered by the 2nd amendment, do you look at whether the PERSON is “oustide” the 2nd amendment’s protection or would you do some sort of “intermediate scrutiny” balancing test? –
I agree with you that the court applying a two tier test to weapons (with intermediate scrutiny being the second tier) does not compel evaluation of categories of people under a two tier test.
July 17, 2010, 2:13 amI was going by memory (and said so, and said it was rather fallible), and my point was just that the court has, and has used, various means to avoid balancing.
The recent 7th Circuit Skoien case being discussed here uses a combination of history and a half-baked balancing test to uphold the domestic violence misdemeanant ban.
Gaunilo says:
With the incredible triviality of many felony offenses under Federal law, I have many problems with an automatic permanent disability for felony convictions.
Further, the point that I was making earlier is that the level of due process in most misdemeanor courts does not rise above the Australian marsupial level, and the use of a conviction at that level being used to permanently restrict a fundamental right is unconscionable.
Most defendants have to do a crude economic analysis, plead without any clue what the consequences are, and only find out only later, under this ruling, that they are permanently disbarred. IANAL, but I find this result to be a horror.
July 17, 2010, 9:22 amcboldt says:
– IANAL, but I find this result to be a horror. –
July 17, 2010, 9:30 amYou will not live long enough to see a remedy to this, in law. I recommend educating your friends and peers at least to the connection between any civil or criminal action and loss of right to possess a firearm.
The government is just paying lip service to the right to keep and bear arms. It’s intention is to disarm the public, even if that takes generations.
Bama 1L says:
Wisconsin’s constitution grants all criminal defendants the right to a twelve-person jury trial in circuit court, regardless of the charge or penalty. So you can’t really distinguish felons from midemeanants. Does that alter your analysis?
July 17, 2010, 11:02 amPersonFromPorlock says:
Time to trot out my tired old question again: if an unconstitutional law is no law from the start, why isn’t an unconstitutional precedent no precedent? Every judge’s oath requires him to defend the Constitution, but I’m not aware of any that requires him to preserve precedent; and if an oath doesn’t trump ‘procedure’, why bother?
July 17, 2010, 12:55 pmGaunilo says:
Bama 1L
Actually, not so much. The ultimate thrust of this line of law is that something we take as minor offense when we plead to it can later become a huge disability.
If this line of decisions is allowed to stand, there is no barrier to later legislation that says if a person has ever been convicted of speeding to the extent that lives could potentially be endangered then that person could be retroactively stripped of a basic constitutional right. So pleading to any low-level misdemeanor, which most of us would consider the only prudent thing to do, could later cause us to lose our rights. I know this one is only the right to be a reprobate and insist on owning those icky guns, but it could later cost you the right to privileges and immunities that you value yourself.
Coupled with the increasing criminalization of everything, this is just one more step on the path to there being no innocent men, and the state having free rein to prosecute anyone it finds to be inconvenient.
July 17, 2010, 2:45 pmBama 1L says:
I wouldn’t consider it prudent, but then I didn’t commit the crime and I do know about the consequences of pleading guilty even to a minor misdemeanor. We can’t really do anything about whether Neis committed the crime.
You’re raising three separate issues:
1. Sometimes people plead guilty to crimes, particularly misdemeanors, without knowing the full consequences. Maybe we need a Padilla warning, although it should be a Due Process requirement.
2. In many places, the courts that handle misdemeanors are assembly lines that do not provide due process. Dodge County, Wisconsin, may not be one of these places, but I will agree with you that plenty of them do.
3. Legislatures impose all sorts of lasting disabilities on convicts unconnected to their crimes, often retroactively.
July 17, 2010, 3:31 pmcboldt says:
– 3. Legislatures impose all sorts of lasting disabilities on convicts unconnected to their crimes, often retroactively –
July 17, 2010, 4:07 pmWould you mind citing a few specific examples? I’d like to poke around the legislation, maybe look at decisions, and compare with what I’ve read on the aftermath of Lautenberg.
SuperSkeptic says:
I’m not so sure. ;)
In any event, whenever you argue to restrict a right based on such a “test,” you subject your position to that criticism.
July 17, 2010, 4:26 pmBama 1L says:
Start with state Megan’s Laws and the federal Adam Walsh Act (Sex Offender Registration and Notification Act). The Supreme Court upheld these against ex post facto and procedural due process challenges in two 2003 decisions. Besides registration, some of these laws impose severe restrictions on where the individual can live and work. As far as I know, they all have retroactive effect; a sex offender is required to comply even though the law did not exist when he was convicted.
I have a dim recollection that there was no constitutional problem with retroactively stripping felons of the right to vote, but the only states that have done it recently (Massachusetts and Utah) limited disenfranchisement to the term of incarceration. I don’t know if there is any law on whether a state could retroactively disenfranchise felons who have been released.
July 17, 2010, 4:51 pmJeff S. says:
The vast majority of felonies on the books are non-violent. I would rather that RKBA restrictions only apply while under the jurisdiction of the courts; i.e. parole/probation. We have so many societal restrictions against released felons and, some wonder why they don’t assimilate into a society refusing to hire, rent to, assist in any way other than a return ticket to jail/prison. Either kill all of them, refuse to release them or, assist reintegration. BTW, a friend out of high school many years ago, wrote a bad check for over $50. Felony. What a violent offender. For many years in Michigan, the maximum sentence for a bad check was longer than that for rape. Money writes laws.
July 17, 2010, 6:18 pmMichael Ejercito says:
There seem to be scrutiny issues involved, if fundamental rights are involved.
July 17, 2010, 7:32 pmMichael Ejercito says:
From what I can tell, the only issues are the level of scrutiny involved and the scope of cruel and unusual punishment (and possibly the level of due process provided). Stripping a fundamental right would require the federal government to meet strict scrutiny, something they could do with the Lautenberg Amendment. And courts have given leeway with states restricting the rights of convicted criminals.
As there is no fundamental right to refuse to register, the federal Adam Walsh act would only fall under the highly-deferential rational basis review.
July 17, 2010, 7:44 pmDaniel Chapman says:
My position may be subject to all kinds of criticism, but that doesn’t mean the criticism is valid. Do the police have the right to take guns away from prisoners? Why? They have the right to keep and bear arms, right? How about al qaeda? A dozen syrians walk across the boarder to LA and want to buy a small arsenal… they have the right to do that, right? People with delusional mental illness?
Everything’s a balancing test at some level… If you don’t believe that you’re a fool.
July 17, 2010, 8:13 pm