The Down Range Forum
Flying Dragon Productions ( Michael Bane ) => Michael Bane on the Radio => Topic started by: Robin on December 19, 2008, 10:16:11 AM
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In #88 Michael Bane stated that Burress does not deserve jail time for illegal concealed carry because he was exercising his constitutional right to self defense. I can't believe that Michael, as a law-abiding citizen, is advocating people break the law. Especially this law, since doing so will cast all law-abiding gun owners in a bad light and serve as additional fodder for the gun control groups.
This is the same Michael Bane who in an earlier podcast mentioned he does not carry concealed in L.A. because he can't get a california ccw. There is a disconnect here.
If you feel a gun control law is unjust the way to fight it is by working in the system and not outside of it. Heller would not have obtained his victory if he had prior convictions for (what were then) illegal firearm posession. Likewise conviction for illegal ccw will prevent you from ever obtaining a legal permit. In some states a firearm related conviction will also bar you from owning firearms. This is not the direction you want to take.
Speaking directly to Plaxico's situation I would wholeheartedly support the position that Plaxico receive the same type of legal prosecution and (if convicted) punishment as "normal" citizens in that jurisdiction. No special treatment for celebrity status--either in favor of the defendant (like the hospital not reporting the gunshot wound) or against (like Bloomberg stating max jail time for a first offense). I don't think max jail time for a first offense--assuming it is Plaxico's first offense--is warranted. But neither do I think he should get off with a small (to him) fine and community service/probation.
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He should be given his jail time as per the law, and then appeal and counter sue over the draconian anti gun laws that N.Y. has in place.
Neither will happen because he will bargain this down to a fine and probation + community service.
I think the biggest laugher out of all of this is Mayor Bloomberg coming out and bashing Plaxico. He really railed against him saying how they have to throw the book at him... and prosecute him to the "fullest extent of the law" in order to show no favoritism.... and said "I don't think that anybody should be exempt from that. It would be an outrage if we don't prosecute to the fullest extent of the law." Not prosecuting celebrities would make "a sham, a mockery of the law,".
http://www.nydailynews.com/news/ny_crime/2008/12/01/2008-12-01_mayor_bloomberg_fuming_over_plaxico_shoo-3.html
Really Bloomy? Really? If you are so hell bent on enforcing the law, then why is NYC a sanctuary city? Why do you thumb your nose at immigration law, but are hell bent on enforcing your insane and counter productive anti gun laws? Why do you turn a blind eye on illegals committing identity theft and fraud so that they can be here and commit countless other crimes in the process? Why do you only wish to enforce the laws that further your left wing agenda even though they are clearly not in the best interest of the people of your city? Why do you ask your district attorneys to cherry pick who they will prossecute based on which laws you think should be enforced? Why must you make an example out of Plaxico just because he committed what your insanity has deemed a gun crime?
A: "Because I am a politician, and I know what is best for you. Trust me."
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He should be given his jail time as per the law, and then appeal and counter sue over the draconian anti gun laws that N.Y. has in place.
I agree this action would make for an interesting appeal to defeat the odious Sullivan Law. Yet, Burress' lawyer would advise against it because of the time and trouble involved. There is also the risk that the appeal would fail, and Burress would remain a convicted felon. The lawyerly thing to do would be to seek a plea agreement on a misdemeanor and make the problem go away. There is also the possibility the charges could be dismissed for publicity reasons. Burress' biggest offense is that he wore sweat pants to a nightclub. I hope he is getting some sartorial advice as well.
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Source: Gun Control and Gun Rights by McClurg, Kopel, Denning, 2002. (abbreviated: GC&GR)
Here's the problem:
1) The Constitution declares itself the law of the land. The states agreed to it and the amendments.
2) A bad SCOTUS decision declared that the Federal Constitution doesn't apply to state action. This is bad because it contradicts the agreement in #1. (Barron v. Baltimore, 32 US 243 (1833)).
This is really important because it contradicts #1. It left the states free to violate ANY right in the Federal Constitution. Somehow, the Founding Fathers meant for this to happen--something with which I do not agree because the functional result is that there are no rights--only laws. GC&GR page 156.
We are now in a situation where we have multiple layers of law and a patchwork of gun laws that are frequently contradictory. There is no RKBA, except in state constitutions. Even then, individual states have laws that violate their own constitutions.
3) 1868: 14th Amendment ratified. This challenges the notion of #2, but SCOTUS has never accepted that the privileges or immunities clause was intended to prevent states from violating the Bill of Rights. However, SCOTUS has ruled that most rights contained in the Bill of Rights do limit state action...but on a one-by-one basis. SCOTUS uses a process called "selective incorporation" which evaluates rights as "sufficiently fundamental" to be included in due process of law. GC&GR page 157.
Smells like bullshit to me. See #1.
The net result: the SECOND Amendment to the Constitution has NOT been incorporated into the 14th Amendment AND states can pass any law they want regarding guns.
Additionally, as mentioned before, many states have RKBA, but pass laws that violate the RKBA defined in the state consitution.
Mr. Burress violated a law that violates #1. A quick scan of the New York state constitution doesn't reveal an RKBA.
In my opinion, the Sullivan law is no law at all because it violates the Federal Constitution. Additionally, Barron v. Baltimore is a bad ruling and should be removed. But, my opinion doesn't matter and Mr. Burress is going to go on trial and will probably get prison time.
I believe that there should be a hierarchy of Constitutions. The Federal Constitution should be at the top. Any lower level constitution should be no more restrictive, but can enumerate additional rights. However, we currently do not have this system (even though the states agreed to it). Those in power have worked very hard over the centuries to ensure that we don't have this system and that the Federal Constitution is neutered in the way that is most advantageous to maintaining power.
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10th Amendment should come into play. If all powers not granted to the federal govt. are reserved to the States then limitations placed on Federal Govt should be enforced on the states unless otherwise specified, ergo the rights of the people to keep and bear arms can not be infringed legally at ANY political level.
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The net result: the SECOND Amendment to the Constitution has NOT been incorporated into the 14th Amendment AND states can pass any law they want regarding guns.
See my thread on the incorporation case that will be argued in 2 weeks....
http://www.downrange.tv/forum/index.php?topic=4526.0
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Any news on the Burris case?
After all, he has as much a right to self-defense as any of us on this board.....
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Any news on the Burris case?
After all, he has as much a right to self-defense as any of us on this board.....
Giants cut him and his court case has been adjourned until June
http://sports.espn.go.com/nfl/news/story?id=4040009
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In #88 Michael Bane stated that Burress does not deserve jail time for illegal concealed carry because he was exercising his constitutional right to self defense. I can't believe that Michael, as a law-abiding citizen, is advocating people break the law. .........
If a law is illegal is it still a law?
Only if we allow it to be.
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If a law is illegal is it still a law?
Are you trying to suggest that laws requiring a permit for concealed carry are unjustified and should be ignored? Or are you simply using a large font and something that sounds like a zen koan to give the illusion of meaning?
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It is much easier to ask forgiveness than to beg permission.
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Are you trying to suggest that laws requiring a permit for concealed carry are unjustified and should be ignored? Or are you simply using a large font and something that sounds like a zen koan to give the illusion of meaning?
Yes, and if I served on a jury where an otherwise law abiding citizen was charged with carrying without a license I would vote Not Guilty.
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Are you trying to suggest that laws requiring a permit for concealed carry are unjustified and should be ignored? Or are you simply using a large font and something that sounds like a zen koan to give the illusion of meaning?
I am suggesting nothing. I am saying that illegal laws can can only be used to bully the sheep if the sheep allow it. Choosing to follow an illegal statute or not is a matter of personal choice. One can choose to ignore the law but bullies, being what they are, will take you to task for it. A system is only fair if the people who are running the system see to it that the system is fair.
Fairness, an idea whose time has apparently come and gone. We have ridiculous laws on top of laws now...whenever there is outrage politicians pontificate and pass another law to cover the other law(s) that were not enforced in the first place. The only laws consistently enforced...those that collect revenue from the little guy who has something to lose.
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I am suggesting nothing. I am saying that illegal laws can can only be used to bully the sheep if the sheep allow it.
As anyone who has worked with livestock knows.....a fence only works until the stock figure out that it can be pushed over....
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I don't think he deserves jail time for carrying the gun without a permit (though he did commit a felony in the PRNJ).
I think he deserves some penalty (maybe a fine enough that actually HURTS someone that rich) for discharging a firearm in a crowded public place when there was no threat against him. THAT is the kind of irresponsible thing that I think every gun owner tries to prevent him/herself from doing.
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Let me again remind folks of Jury Nullification and give a couple of link that might be of interest.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://www.fija.org/
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He reached down to grab his Glock as it was slipping down into his sweatpants and while trying to catch the gun from going down further into his pants, set off the trigger..... ::) The risk he exposed himself to and others in the vicinity cannot be ignored or dismissed. Further, he could be prosecuted by the State of New Jersey as he only possessed a Florida carry permit. As there is no reciprocity with Florida or non-resident permits allowed in either New York or New Jersey, he should consider himself lucky that New Jersey has left him alone so far.
Personally, I think a VERY heavy monetary fine, commensurate with his income, and 1,000 hours or so of Community Service would be a fair trade off for jail time, especially since NYC carries a 3 1/2 year mandatory jail sentence for possession of a handgun without a carry license. He would do more good to the community in that regard then just sitting in a cell IMHO. In reality this "mandatory" NYC sentence is often times not applied and deals are struck between legal parties. Mandatory is negotiable these days, however, given the high profile of this case and Bloomberg's previous comments, hypocritical as they may be, to prosecute to the fullest extent of the law, the fine and community service could work and is more than fair IMHO.
Don't get me wrong, I abhor the ridiculous gun laws we have in place in New York and New Jersey and agree they are unconstitutional. However, I believe we have to abide by the laws established and feel equally strongly that a society without laws cannot exist. So we do our best to fight as best we can, but people like Plaxico Burress have to learn that they are not above the laws established within the United States, irrespective of who they are, how much they earn and how well they can run a slant pattern..
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The news is Plaxico Burress has entered a guilty plea and agreed to a two-year prison term for the incident with the Glock and the sweat pants. Mr. Burress is now a political prisoner of the State of New York.