Monday, March 30, 2015

Point / Counterpoint

Two fascinating items from the weekend provide a most revealing glimpse into two contrasting mindsets. The first is from a state legislator from Vermont:
Vermont, if memory serves, observes the Second Amendment in all its glory: i.e., its laws recognize the right of the people to keep and bear arms. This is sometimes called “constitutional carry:” no permit is required to acquire a handgun, nor to carry it publicly. The number of Vermonters who exercise their rights to carry is it should be. Apparently, Miss Carlson is dissatisfied with this state of affairs. Whether Vermonters are aware of her opinions is also unknown...but they’re not likely to remain unaware for long. The second item comes from the reliable, redoubtable University of Tennessee Professor of Law Glenn Harlan Reynolds, also known as InstaPundit:
Ignorance of the law, we are often told, is no excuse. "Every man is presumed to know the law," says a long-established legal aphorism. And if you are charged with a crime, you would be well advised to rely on some other defense than "I had no idea that was illegal."
But not everybody favors this state of affairs. While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of "regulatory crimes" in which intuitions of right and wrong play no role, but for which the penalties are high. If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.

Please read it all. “Not everybody favors this state of affairs,” indeed. For when the law, by its very luxuriance, cannot be known in its entirety by any person – when regulatory bodies that lack legislative oversight, much less Constitutional authority, are permitted to pass regulations with the force of law of which no private citizen is informed – the law has gone through a great and unacceptable transformation: it has become the private, secret property of the State.

The relevance of this situation to firearms law is especially strong, as the fifty states and the District of Columbia each have their own firearms laws and regulations, some of which are under legal challenge due to recent Supreme Court decisions. Thus, a man with carry rights (permitted or otherwise) in his home state is under obligation to determine to and through what other states he can travel armed without putting himself at hazard of legal penalty. Should he confuse the laws of one state with those of another, his mistake could tell heavily upon him and his family. Particularly firearms-hostile jurisdictions have levied harsh prison sentences and stiff fines upon Americans utterly innocent of any true wrongdoing. In some cases, the victims’ cars and other personal possessions have been confiscated. But ignorance of the law is no excuse, right? Right?

If you read yesterday’s tirade, you should be concerned, at the very least, about the state of law and justice in these United States. Yet believe it or not, I know people who will defend the legal status quo to the point of a screaming fit. “It’s got to be that way!” Many of them confuse this situation with the “rule of law,” whether deliberately or otherwise. It’s an unstable situation for at least two reasons. First, there can never be sufficient enforcement nor prosecutorial nor judicial power to enforce all the laws extant in a uniform fashion. Laws that go unenforced implicitly weaken all law, and the rule of law itself as a governing concept. Their consequences include such ideas as “laws are for the little people.” When ordinary private Americans see politicians and celebrities granted special exemption from the laws – recall the David Gregory incident? – the damage is fatally compounded. Second, once the notion has been accepted that the law, because of its volume and complexity, cannot be uniformly enforced, prosecutorial discretion becomes the sole determinant of who the victims will be and how badly they will suffer. Prosecutors become more powerful, de facto, than any other public official. Those in whose souls resides a seed of corruptibility are tempted to use that power. Some of them will succumb.
“Law has lost its soul and become jungle.” – Bertrand de Jouvenel

Juries willing to acquit in defiance of a trial judge’s instructions can only do so much to offset the malady described above. Even if every such jury were aware of its powers and all of them used them in every applicable instance, indictment and trial are themselves terrible ordeals to undergo. The accused citizen is often unable to maintain a job and an income. He’s usually bankrupted by lawyer’s fees, if nothing else. His familial relations will be affected as well. And of course, his reputation is likely to suffer regardless of the ultimate verdict. Only the complete rejection of the existing corpus juris and its replacement by a penal law utterly dependent on the common understanding of justice – what used to distinguish between malum in se and malum prohibitum offenses – can correct the travesty that law and justice have become. But that cannot occur as long as there exist legislatures that feel free to disregard the constraints of the Constitution, prosecutors who believe themselves empowered to discriminate between accused citizens, regulators allowed to write “laws” beyond the legislated law and without oversight...or millions of Americans who think “there oughta be a law” is a respectable thing to say or think about any deed not covered by Commandments Five through Eight. Food for thought.

4 comments: said...

Thanks Fran,

This, coupled with yesterday's post, is thought provoking to the point of inducing obsession. You have convinced me that the state has truly subsumed our God-given liberties such that we are all now criminals - merely waiting to be charged.

Live free or plea-bargain.


Anonymous said...

Great post. But I think you're being generous to prosecutors,

"Some of them will succumb."

It's what they do. It's why they're there. More accurate to say that 'some very few won't succumb'.

KG said...

There is very little justice and a great deal of law and regulations.

Wombat said...

Oh, but Mister P! Donchaknow?
Common law is based on a monocultural understanding of right and wrong.

I mean, marrying and bedding a nine year old girl might be wrong to you and me, but who are we say that it's wrong for everyone? What about Mohammed Mohammed, who recently arrived from Mohammistan? Where's his common law? ;)