Show #88: Plaxico Burress deserves jail time

[Robin]

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.

[ericire12]

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."

[Trevor]

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.

[crebralfix]

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.

[tombogan03884]

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.

[Sponsor]

[1776 Rebel]

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

[seeker_two]

Any news on the Burris case?

After all, he has as much a right to self-defense as any of us on this board.....

[ericire12]

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

[Rastus]

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.

[Robin]

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?