A second amendment case in Denver gave rise to the following action by the judge.
So, was the judge correct to prohibit mention of the Constitution?
Although the judge’s statement sounds silly, I can see things his way. Mention of the Constitution was a subtle invitation to jury nullification.
OTOH what rights and obligations do non-judges have for upholding the Constitution? Do the rest of us get any input into that question?
There is nothing remotely improper about that order. It is the judge’s job to inform the jury what the law is. If the lawyers attempt to do so, a mistrial may be declared and the offending attorney may properly be sanctioned.
My layman’s interpretation is that the judge was saying that the constitutionality was outside the purview of the trial - the constitutionality had already been ruled on by a higher court and approved.
Minty is dead on. In a trial, the judge decides the law, and the jury decides the facts. The constitutionality of a law is, by definition, a matter of law.
Therefore, it is irrelevant to the jury’s determination. Heck, the judge could have barred its mention on the basis that discussing it would simply be a waste of everyone’s time. Add to it the fact that in this case, the defense’s strategy was apparently to get the jury to rule on the constitutionality of the law, which is utterly improper, and the judge’s order went from being appropriate to nearly mandatory.
Sua
I initially agree with the ruling. As far as I know, the Second Amendment has not been incorporated via the 14th Amendment to the states, has it not? So (if that’s true), a 2nd Amendment issue would have no relevance in a state court, right?
But it could be taken to the Supreme Court (provided it makes it through the court ranks) on 2nd A. grounds, right?
[sorry for the questions, but here’s one more:]
What in the world is a voir dire argument?
You guys are the best!
No, the Second Amendment has never been incorporated to apply to the states. Because this is purely a local law, it could not go the the U.S. Supreme Court on existing Second Amendment grounds.
And voir dire, in this case, means the attorneys’ questioning of the potential jurors before their selection. Stuff like “Do you know any of the parties?” and “Can you follow the law as the judge instructs you, even though my client is the type of nutjob who gives libertarians a bad name?”
Munch:
Not only can it be appealed, but the constitutionality of a law may be argued at a trial level. In fact, it’s necessary to argue it at the trial level, or you may not be permitted to argue it on appeal.
The link referenced above is not working for me, but I can only assume that they defendent did attempt to argue the constitutionality of the law at the trial court, and the judge ruled adversely to his cause. Even a pre-trial motion may be insufficient to preserve the alleged error for appeal; usually, you renew your motion during trial, out of the jury’s hearing, the judge reaffirms his denial, and you’ve made your record for appeal.
Note the distinction between arguing it to the judge, a necessary course of action for appeal, and arguing it to the jury, a wholly improper move, since, as noted above, the jury is the fact-finder, and does not reach conclusions of law.
The quote souds scary – with no context, it appears to be a judge ordering lawyers and defendents to disregard the Constitution! But as has been ably explained above, it’s not at all improper in the context of a trial.
Hmmm. Minty, I’d question your second sentence. Every law in every jurisdiction is obliged to comply with the relevant Constitutional provisions – and one is privileged to appeal a state ruling one feels violates one’s rights under the U.S. Constitution to Federal court, ceteris paribus. I grant that this is a bizarre case, the quotes december cited are out of context, and the particular circumstances under which the trial proceeded are much as you represented.
But if this guy, whatever one might think of him, is not entitled to have a decision made, at some level, as to whether the Second Amendment (or whatever other Constitutional protection might seem applicable) applies to the case under which he was charged, then there’s something severely wrong with our judicial system. The apposite quotes in the article do make this point clear:
While I am not a fan of the extreme position advocated by some regarding the Second Amendment, I do feel that, as written, it is one of the “privileges or immunities of citizens of the United States” as the Court has for many years held are protected as against State law by the Fourteenth Amendment. In short, we should either honor it as part of the supreme law of the land or we should amend it to better reflect the times in which we live – not sweep it under the carpet.
Bricker, the judge barred the defendant’s attorney from asking potential jurors about the Constitution or quoting the 2nd Amendment to them.
I got this from Instapundit; maybe you can link there. http://64.247.33.250/ BTW “Instapundit” is Vanderbilt U. law professor Glenn Reynolds. His only comment is “Jeez.” This comment may mean that Reynolds strongly disagrees with the judge’s statement, but, if so, he doesn’t say why.
can I come sit in your courtrooms? ours are awfully dull by these standards. 
Minty, I must take issue with this claim.
The state of the law on this issue is far from clear. An appellant is perfectly free to argue that the federal constitution protects his individual right to bear arms, and that a local law to the contrary is violative of that right.
The Fifth Circuit handed down U.S. v. Emerson last year, in which they said in dicta, in rather strong language, that the Second Amendment was an individual right.
The Supreme Court could ceratinly choose to grant cert on a state court appeal to address the issue.
Poly, you’re missing my point there. As it stands right now, the Second Amendment does not apply to the states and their laws. To take a case from a state court to the U.S. Supreme Court, the issue must be one of federal law. If federal law does not apply to this guy’s case–and under current jurisprudence, the Second Amendment clearly does not apply to his case–there is no federal question. So the defendant here could ask the Supreme Court to decide whether the Second Amendment applied to the states, but he’s not going to get very far if he just assumes that it applies. It’s a fine distinction, to be sure, but a valid one.
Let’s pretend the case in question didn’t involve guns. For the sake of argument, let’s consider different cases.
It may SOUND bad, out of context, for a judge to say “I don’t care about the U.S. Constitution, and I dont’ want to hear any arguments about it.” But I can think of a host of instances in which a man facing criminal charges might want to argue constitutional points… but the judge is likely to say, in effect, “the Constitutional issues have been settled by higher courts, and I’m not interested in hearing them rehashed here.” And MOST of the time, nobody is going to blame the judge for taking that line.
Examples? Well, a guy busted for marijuana possession might WANT to argue that the Constitutional “right to privacy” gives him carte blanche to smoke anything he wants, but very few judges will even listen to such stuff.
A guy arrested for income tax evasion may WANT to argue that the IRS is an invalid, unconstitutional institution, but no judge is going to let him make that the basis for his defense.
A gunman who shoots an abortionist may WANT to argue the constitutionality of the Roe vs. Wade decision in his defense, but most judges wouldn’t stand for that.
In ALL of those cases, most judges would say, “Look- plead innocent, or plead guilty. Tell me you did what you’re charged with, tell me you didn’t, or offer a valid explanation… but spare me the speechifying. YOU’RE on trial here, not the Constitution as we currently understand it.”
Rick, please don’t make me pull down my copy of the U.S.C.A. to cite all the cases that say the Second Amendment does not apply to the states. Individual right or not, it only applies against the federal government, at least as it stands right now. Supreme Court jurisdiction here would depend on whether or not the Second Amendment applies to the states–if it doesn’t (and right now, it doesn’t), the case is not one “arising under [the] Constitution.” Of course, the courts always have jurisdiction to consider their own jurisdiction, so the legal question could certainly be resolved there, even if the ultimate answer shows a lack of jurisdiction over the defendant’s case.
Sorry, it’s a bit nitpicky, but I have to deal with this crap all the time with the Texas Supreme Court, which has pretty limited jurisdiction. It makes me a bit overly-sensitive to questions of appellate jurisdiction sometimes.
I do see your distinction. However, at the time their cases came to trial, the relevant Constitutional provisions did not apply to the cases of Mr. Gideon, Ms. Mapp, and Sr. Miranda, either. So I trust you see my point.
I personally feel that the issue is a Black and White one – meaning Hugo and Byron. 
Minty:
I agree that U.S. v. Miller pretty well casts the Second Amendment as a collective right.
However, since at least one federal circuit doesn’t agree, and has written an opinion claiming the Second Amendment is applicable to the states, it seems pretty obvious to me that the Supreme Court could choose to accept the issue as arising under the Constitution. And, as you correctly point out, since a court always has jurisdiction to consider its own jurisdiction, they are perfectly free to do so here.
In 1961, the Supreme Court decided Mapp v. Ohio, which applied the exclusionary rule for evidence obtained in violation of the federal constitution to the states, overruling a previous case (Wolf?) that had held the states were NOT bound by the exclusionary rule.
There is no reason to suugest the Supreme Court cannot do the same here.
There is plenty of reason to believe they may not choose to, of course.
Emerson did no such thing, I’m afraid. It said (in dicta, of course) that the Second Amendment conferred an individual right, but as it was the validity of a federal criminal statute that was at issue, the court had no opportunity to address the question of applicability to the states.
And again, I agree that the Court could take the case.
I disagree. A jury’s primary responsibility is to judge the law, no matter what the judge says. If the jury decides the law is Constitutional, then they can look at the facts.
I also take exception to anyone who claims the Constitution can’t be invoked in this case. It can be – anytime, anywhere. No matter what the judge says.
well, Crafter on a practical basis, the judge absolutely rules their own courtroom (they can be overturned but until that happens, if they say that you may not speak of the Constitution, you may not.
and, the lawyers are correct about the law - the juries are specifically to ‘facts seekers’, and are to apply the laws are instructed by the judge (or did you miss the “judge’s instructions to the jury” part of trials?).
Now, if you’re stating that again, on a practical basis, the judge might not know what the jury does in deliberations, that’s true (but they can query the jury if they suspect something’s amiss, or nullify the decision)/
CM: *I disagree. A jury’s primary responsibility is to judge the law, no matter what the judge says. If the jury decides the law is Constitutional, then they can look at the facts. *
IANAL, but that doesn’t sound to me like a very sensible idea. Jurors can be perfectly competent to weigh evidence in a properly-conducted trial and decide factual questions of innocence or guilt, but they aren’t trained in jurisprudence or constitutional law. If they have to assess the constitutionality of the law(s) relevant to the case before they can look at the facts, how are they supposed to go about it?
Is every jury going to get a crash course in constitutional law and the relevant precedents? Heck, we laypeople can be tripped up by even a simple legal technical term like voir dire in this thread — how are we as jurors going to manage to assimilate all the concepts and issues involved in time to give the poor defendant anything like a speedy trial?
Or is every jury simply supposed to make constitutionality decisions based on their own prior notions of what constitutionality means? Even if we could get the twelve people on any one jury, starting from scratch, to agree on what they think is constitutional and what isn’t, how would we reconcile the conflicting judgements of different juries? How on earth would we be able to enforce “equality before the law” in any practical sense with all these contradictory verdicts on constitutionality floating around?
No, this idea is a recipe for chaos. AFAICT the current division of labor works a lot better: the legislators make the law, the judges decide whether the law agrees with existing law and with the Constitution, and the jurors decide whether or not the defendant violated the law. Not a perfect system, but a hell of a lot easier than trying to turn every juror into a constitutional expert.