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Common Sense
Posted by Bill on Dec 11th, 2007
2007
Dec 11
In an era where common sense seems to have vanished and the political divide has become a vast canyon, the Supreme Court has stepped forward to show that a consensus can be reached.
December 11th, 2007 at 2:46 pm
Now if only they could figure out the equal protection doesn’t mean reverse discrimination.
Not that I mind terribly the reverse discrimination, being a legally protected species myself can be highly entertaining.
December 11th, 2007 at 3:07 pm
Just wondering and taking ‘use’ according to its new and improved expansive understanding:
If money is consumed by its use, then does it follow that a potatoe is likewise consumed by its use when used as a medium of exchange?
December 11th, 2007 at 4:34 pm
It doesn’t say if there was any dissent. I would be curious to read that.
Using Souter (author) and Ginsberg (concurring) as your standards for “common sense” is somewhat mystifying.
The government’s argument relying on Smith and statutory clarifications was not “tepid.” If only the possessor of one article in a barter transaction can ever be said to “use” said item in said transaction, then no barter transaction has ever occurred, in English or any other language. This was one of the slyest pieces of jurisprudence ever to fool lawyers.
December 11th, 2007 at 4:36 pm
Mike, there was no dissent. It was a unanimous decision.
December 11th, 2007 at 4:40 pm
LTG,
No. The potatoe was never used by the recipient. It remained perfectly integrally sound and will never decay. Only the original owner used it. Once he transferred its ownership, it ceased ever having the capacity for use. It may not technically, according to English, ever be considered “property” again. It enters into a new realm of existence, even as it begins to be used by the original owner. In fact, according to normal English usage, the government goes too far in seeking to prove that it was ever retroactively used. It is clear that “use” in relation to barter transactions is invalid. We also know that any potential recipient of the non-property cannot reasonably, in English, be said to expect to use, to use, or to have used anything at any time.
December 11th, 2007 at 4:41 pm
Bill,
I find that sort of sad.
December 11th, 2007 at 4:47 pm
This writ of cert depends on an entirely too narrow view of the temporal aspect of “during and in relation to … [a] drug trafficking crime” to make it so finite as to consist exclusively of the handing over of one object, and not the exchange of both/all items, and the included offenses of possession, etc.
December 11th, 2007 at 4:53 pm
The fact is, the Court does not appear to take much consideration of the fact that Watson was simultaneously committing two crimes (and more, obviously). He was committing a “drug trafficking crime,” and he was committing a “gun crime.” There are statutory definitions relating to the fact that “attempt” is the same, legally, as “does.” One can, and should, be convicted of robbery if one begins to walk into a bank wearing a ski mask brandishing a pistol and having a note in one’s pocket if one is precluded from completing the robbery. The Watson case clearly demonstrates that Watson’s goal was to “use” the gun he intended to illegally obtain, and he furthered his conspiracy so to do.
December 11th, 2007 at 5:00 pm
Mike, I think you are really stretching for an argument here. Conspiracy? to do what? And what, aside from holding illegal drugs, exactly is the crime here…obtaining a fire arm? and how did he use the firearm in the commission of a drug offense?
December 11th, 2007 at 5:06 pm
Bill, have you done any prosecution?
“Conspiracy? to do what?” I’ll quote from the opinion:
“petitioner, Michael A. Watson, told a Government informant that he wanted to acquire a gun. On the matter of price, the informant quoted no dollar figure but suggested that Watson could pay in narcotics. Next, Watson met with the informant and an undercover law enforcement agent posing as a firearms dealer, to whom he gave 24 doses of oxycodone hydrocholoride (commonly, OxyContin) for a .50 caliber semiautomatic pistol. When law enforcement officers arrested Watson, they found the pistol in his car, and a later search of his house turned up a cache of prescription medicines, guns, and ammunition. Watson said he got the pistol ‘to protect his other firearms and drugs.’”
That is what he conspired to do: further his drug and wepons trafficking enterprise.
It is a crime to obtain a firearm in a variety of circumstances, surely you would stipulate that obtaining or attempting to obtain with said use constitutes a crime?
December 11th, 2007 at 5:18 pm
Oh, and he used the firearm to complete the transaction: it is implicit in the nature of transactions that one uses one thing to get another to use. One does not, presumably, transact to trade something for nothing and with no intent. That is called a gift. Elvis may have took ‘em all for you and me (HT: Pinkard and Bowden), but everyone else in the drug trade is not altruistically giving away guns, money, drugs, or magazine subscriptions.
December 11th, 2007 at 5:33 pm
That, using the decision’s standard, is what it is “normal and reasonable” to expect Congress to have meant when crafting the law under consideration, especially considering the “totality of the circumstances,” to wit: Watson’s stated intent.
December 11th, 2007 at 5:39 pm
Mike, yes but only for a summer. It seemed really easy.
Prosecutor: “Officer, what happened on date X?”
Officer: “Well, X Y and Z occurred.”
Prosecutor: “Yes, and what happened next?”
Officer: “I observed X doing Y and Z”
Prosecutor: “Yes, and what happened next?”
Officer: “I determined X Y and Z based on my training and experience.”
Prosecutor: “I see, and what happened next?”
Officer: “I arrested the suspect on charges of….”
Prosecutor: “The prosecution rests, your honor.”
Admittedly, I was in the general felonies unit, not anything complicated there. The police did nearly all the work. The case lived or died by their reports.
December 11th, 2007 at 5:58 pm
Now, on to your assertions….
I should have made myself a little clearer. What conspiracy occured that would turn the case around? In other words, what conspiracy occured that could have made the defendant guilty of “using” a gun during the commission of a narcotics crime? There isn’t one.
The federal offense is designed to deter persons from furthering their narcotics crime by using a gun as a weapon. I hate to say this, but I completely agree with Ginsberg’s concurrence when she wrote “I would read the word ‘use’… to mean use as a weapon, not use in a bartering transaction….”
The prosecution was free to file charges for felony ownership of a fire arm or any other offense. But the issue here was whether Watson “used” the gun during the drug deal. I think not, at least not as far as the intent of the law in question is concerned.
December 11th, 2007 at 6:14 pm
Bill,
For the second time, the defendant Watson was already engaging in criminal drug and weapons trafficking. He was probably also precluded by law due to previous felony convictions from possessing or attempting to possess firearms or ammunition. If not, he would simply have taken the far simpler route of going to a gun show or gun store and, oh, I don’t know, buying one with money.
The “usage” in this context was indeed primarily intended to deter furtherance of drug dealing by using a crime as a weapon, but certainly not solely for that reason: the law was written with the understanding that drug dealers don’t need to hold a gun to anyone’s head to get him to buy the drugs; rather, the drug dealer carries a weapon for protection, for possible use to subsequently rob the prospective drug-buyer, etc. A cornucopia of usages on the part of the initial gun-and-drug carrying thug are implicit. The government in Watson reasonably and normally applied those usages to all parties already involved in illegality. God, this is simple.
December 11th, 2007 at 6:28 pm
I also think it is simple…fortunatly, I have 9 of the smartest people in the world (well, eight and Stevens) agreeing with me.
December 11th, 2007 at 7:03 pm
Mike,
I don’t have any idea about what the precedents say, but it seems to me the obvious meaning of “using” a gun in the commission of a crime is “employing the gun so as to cause fear, or intimidate.” Whether that means pointing the gun, merely brandishing the gun, revealing the gun, or whatever, that’s the kind of “usage” that applies.
Let’s say a guy has a gun and removes the firing pin to pick a lock with. Has he used a gun in the commission of a crime? Yes. But has he used the gun in a way that’s particular to guns, which is what the law, it seems to me, is intended to forbid? Not really. He just needed a lockpick. You might get him for possessing a gun illegally, or allege that by bringing it along he potentially intended to use it, but it’s hard to say with a straight face that he “used” the gun in the commission of his crime in the way an average person would interpret that.
December 11th, 2007 at 7:22 pm
James, as I have tried repeatedly to get across, the use of a firearm while dealing drugs has been set in precedent to include a variety of definitions not limited to brandishing or intimidating. Dealing cocaine is one crime. Buying cocaine is another. Dealing cocaine while armed is another. Possession of a handgun while simultaneously being in possession of cocaine is another. The plethora of ills which can conceivably result because drugs and guns are both present was very clearly in the minds of the legislators who crafted the statute in question, and it is not proper to employ a narrowly limiting standard in the application of this law in a fashion wherein the offensive possession and intention of utilization of a firearm as a weapon are solely determinative of criminality.
December 11th, 2007 at 7:38 pm
James,
This is also why Congress states
“(q)
(1) The Congress finds and declares that—
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary [3] the House of Representatives and the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; …”
Immediately after numerous statutory prohibitions of “receiving” a firearm in interstate or foreign commerce as criminal, with the obvious implication that said “receiving” is “use.”
December 11th, 2007 at 7:45 pm
Ok, I understand now what you’re claiming about the precedents. If that’s true, then as a matter of fact this guy should have been found guilty of “use.” But I would argue with the precedents. Why should dealing cocaine and dealing cocaine while armed be separate crimes? Because of a “plethora of ills that can conceivably result?” A plethora of ills can conceivably result from having a pretty young thing in the front seat of your car, too. Why isn’t that illegal? Is it the role of lawmakers to prevent crime, or to punish crime? This notion that they should prevent crime and every other unhappiness by enacting pro-active laws is about the least conservative position I can think of, Mike. I’m shocked that you seem to be championing it.
Or maybe you’re not and are simply explicating the law as it stands. Man, I hope so.
December 11th, 2007 at 7:58 pm
Mike, Are you really going to quote the “Gun Free Schools” Act to relate to the “use” of a fire arm in the Watson case?
December 11th, 2007 at 8:22 pm
Bill, if they use interstate commerce to justify any gun law at all simply because gun manufacture entails (in many instances) interstate commerce of, say, coke, steel, polycarbonates, etc., I don’t see why they should be precluded from using it in an actual gun case.
James, I’m on record (Karl, back me up) as being of the opinion that there ought not be a federal criminal code for the most part, much less a BATF, DEA, etc.
December 11th, 2007 at 8:28 pm
Mike has said that repeatedly to me.
As for the language you quoted, it sounds to me to be simply a “hook” to fit it into the Commerce Clause jurisprudence of the Supreme Court. I wouldn’t read too much into that language saying anything about what is deemed “use.”
I was going to stay out of this argument, but I would tend to agree with Bill and James that “use” ought to be something more than trading it for drugs. Having said that, if I were to get a case where the criminal had been convicted of “using” a gun in the commission of a crime and was appealing the conviction, I’m going to argue Mike’s position vigorously. FWIW.
December 11th, 2007 at 8:33 pm
Thanks.
December 11th, 2007 at 10:50 pm
Mike writes : “It enters into a new realm of existence, even as it begins to be used by the original owner. In fact, according to normal English usage, the government goes too far in seeking to prove that it was ever retroactively used. It is clear that “use” in relation to barter transactions is invalid.”
You’re correct,”It enters into a new realm of existence”. In so far as the end is not that which is proper to potatoes, then it cannot be said that the potatoe was used qua potatoe, but was used qua means of exchange which is not particular or proper to potatoes. Likewise, the gun was not used qua gun, but used qua means of exchange because the gun was not used according to its end.
December 11th, 2007 at 10:53 pm
Karl writes : “I’m going to argue Mike’s position vigorously. FWIW.”
Why?
December 12th, 2007 at 8:01 am
Mike writes : “if they use interstate commerce to justify any gun law at all simply because gun manufacture entails (in many instances) interstate commerce of, say, coke, steel, polycarbonates, etc., I don’t see why they should be precluded from using it in an actual gun case.”
Because the ‘use’ of the commerce clause is disingenuous, and to follow that lead is to make oneself the equal of those who are disingenuous.
December 12th, 2007 at 8:16 am
Because it’s my job and that’s why they pay me, LTG. It is in the nature of Karls to do what is proper to Karls employment qua working qua arguing legal points.
December 12th, 2007 at 8:47 am
Karl writes : “Because it’s my job . . .”
So said the tavern wench.
December 12th, 2007 at 10:49 am
LTG, before you critize others for their jobs and not making the difference you would like, you should consider actually voting. It would be a nice companion to your complaints about the current state of affairs and positions held by others.
December 12th, 2007 at 11:37 am
Mr. Bill,
Since the odds of my winning the lottery are far superior to my making the deciding difference on any election, other than perhaps the most local, and since my winning the lottery would give me far more power to influence, I think I stick with my current method as futile as it may be.
December 12th, 2007 at 11:42 am
In fact, I contend that my playing the lottery has not only better odds, but also signifies a much greater effort than those who futilely cast ballots every couple of years at no loss to themselves except the time wasted in their effort.
December 12th, 2007 at 12:02 pm
My point being, LTG, that you were so quick to equate Karl’s position with that of a whore becuase you do not like the positions he may make in a court of law yet you refuse to even participate in the opportunity you have been given to make a difference.
Karl’s position, and that of all prosecutors, is to uphold the law. His position does not allow him to take unjustified or unsupported positions. The role of an attorney is to make a case for your side, be it defense, prosecution, etc…. I may dislike a position another attorney takes, but I do not equate the doing of their job with that of a prostitute.
I am merely saying, mind your insults especially because you are more vulnerable to attack through your idle ways.
December 12th, 2007 at 12:14 pm
Bill writes : “My point being, LTG, that you were so quick to equate Karl’s position with that of a whore becuase you do not like the positions he may make”
No, because his defense was that it’s what he is paid to do, because that is what his employer expects him to do. A justification a tavern wench could equally make, and better since her services are preferable.
December 12th, 2007 at 12:58 pm
I didn’t understand LTG to be calling Karl a whore. I think he was just making a point by way of a clear example. “Because that’s what I get paid to do” isn’t an adequate defense if what you’re paid to do is immoral. But therein lies the rub: is what Karl is paid to do immoral? Or how far is it immoral? And at what point is Karl obligated to resign? After all, no one and no system is perfect, so there are bound to be objectionable laws from time to time even in the best society. It’s a tough question and a matter properly left to personal conscience, in my opinion.
December 12th, 2007 at 1:20 pm
Mr. Newland writes : “But therein lies the rub: is what Karl is paid to do immoral? Or how far is it immoral?”
Using a disingenuous understanding of the commerce clause is tantamount to lying, which is a graver sinful act and than that of prostitution. Especially when taking the lying into context including the repercussion into account.
December 12th, 2007 at 1:37 pm
LTG, you seem to have a fundamental distrust and disgust for the law (with a little ‘l’). Not simply on this thread, but on many you have relgated the law (again, with a little ‘l’)to the rubbish heap. I would argue further, but Thomas More in “A Man For All Season’s” does a more eloquent job than I ever could!
Roper: Now you give the Devil benefit of law!
More: Yes, what would you do? Cut a road through the law to get after the Devil?
Roper: Yes. I’d cut down every law in England to do that.
More: And when the last law was down, and the Devil turned on you…where would you hide, Roper, the laws all being flat? This country is planted with laws from coast to coast…..Man’s laws, not God’s, and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the wind that would blow then?
Roper: Yes.
More: I give the Devil benefit of law for my own safety’s sake.
December 12th, 2007 at 4:36 pm
Bill writes : “you seem to have a fundamental distrust and disgust for the law”
While I do have a distrust, (not a disgust), well grounded I might add, of those who are supposed to apply the law because they are so cavalier with other men’s lives, nevertheless, the subject at hand is a particular reading of the law, i.e. the commerce clause, which is simply disingenuous at best.
A disingenuous reading which was, and is, intended to eviscerate the clause while using it as excuse to do the opposite of its intended purpose.
December 12th, 2007 at 4:41 pm
Clearly I agree with you that the Supreme Court addressed the issue correctly, I just don’t understand your uneasiness with a counter argument.
December 12th, 2007 at 5:08 pm
LTG, are you saying that Karl is responsible for the disingenuous reading, or that the courts Karl serves are, or what?
I got lost back around St. Louis somewhere.
December 12th, 2007 at 5:55 pm
Mr. Newland,
“the courts Karl serves are” first responsible. But unlike the common soldier or the executioner who are not responsible in carrying out their duty, a prosecuting attorney is responsible for his actions when following the court’s lead.
December 12th, 2007 at 6:16 pm
And should the government be barred from advocating its position in a court of law? Is there really no argument in this case for Mike’s position?
Again, I disagree with Mike’s position(and by virtue, Karl’s should he be asked to argue it) but I still don’t see how you can justify equating Karl’s position with a “tavern wench.”
December 12th, 2007 at 6:38 pm
Bill writes : “should the government be barred from advocating its position in a court of law?”
Yes.
For the same reason it should be barred from any other act of tyranny.
December 12th, 2007 at 6:48 pm
Let me ask a question of you guys who know these things: how much freedom does a prosecutor have to refuse to prosecute a case he can’t, in good conscience, prosecute? Any at all? I know I find defense lawyers despicable when they defend a client they know is guilty on grounds that they know are a lie, because defense lawyers are free to accept or refuse cases at will. But what about lawyers for the government?
December 12th, 2007 at 6:59 pm
I will defer to Karl on the question concerning prosecutors.
As to defense attorneys, they may not represent a client in a manner the KNOW to be false. So, the client says “yeah, I killed him Here are pictures of me murdering him.” The lawyer cannot enter a verdict of “not guilty” for the defendant.
LTG, your position is tantamount to anarchy.
December 12th, 2007 at 7:18 pm
Bill writes, “your position is tantamount to anarchy.”
While the paleo-libertarians may promote that the choice is either tyranny or anarchy, that is certainly not my position.
In fact it’s the anarchy we live in that I detest, where men are not ruled and ordered to a true common good, but where men order themselves in the wasteland which pretends to be society.
December 12th, 2007 at 7:51 pm
Thank you, Bill. I didn’t know that about defense lawyers. Whenever I’ve asked about this, I’ve always been told “ours is an adversarial system, and in defending an accused citizen, we are not so much interested in justice as in ensuring that the state does not overstep its authority” (or something to that effect). The implication is that, in forcing the state to prove its case, anything goes. I’m glad to hear that that’s not true.
December 12th, 2007 at 9:17 pm
Nice argument y’all have had while I was out defending the honor of the State of Indiana…
I would not be at liberty to simply refuse a case I was given as a Deputy Attorney General. However, if I truly disagreed with a case, say I was asked to defend the State’s current position with regard to abortion (that it’s legal and that its not a crime to kill fetuses), I could ask to be taken off the case. My supervisor might decide to assign it to another lawyer or he might decide that I have to continue on the case. In that latter case, I would be forced to choose to resign or compromise my principles.
With Mike’s example I could draw a line in the sand, but it would be pointless. While I disagree with the current jurisprudence on the Commerce Clause, it is not morally repugnant and I could make a good argument based on the current state of the law. The difference is whether prosecuting a case would be harmful to my soul. Prosecuting a Commerce Clause case would not be harmful to my soul, it may be harmful to the United States and to Indiana, but it is not morally repugnant in the way that an abortion case would be. That is the line for me. I would argue Mike’s position, but it doesn’t say anything morally.
December 13th, 2007 at 12:31 am
Interestingly, Karl would not be likely to need to worry about arguing such a case, as Indiana law does not contain the problematic language and noone is ever going to be arrested under Indiana law for a crime that Watson plead guilty to. That crime doesn’t exist here, although there are plenty of others to choose from.
This whole episode, I should add, underscores the inanity of federal assets being utilized to do (and in a great number of cases simply “adopt”) what local and state assets are capable of doing. We tolerate it because of the satisfaction of seeing serious violent felons receive long sentences in federal prison, of which they will serve a minimum of 85%, but federal cases like this one are one of the worst expenditures I can think of. I’m sure I’d make a hero of myself to libertarians and anarchists everywhere if I campaigned on a platform of eliminating the federal war on drugs and the BATF, DEA, etc., but I’d quickly lose it all by reminding them that this would be to the benefit of states’ and municipalities’ efforts (or lack thereof) in that regard.
This brings up a fundamental point, at long last, and I’m glad Bill posted this and that you all seem so interested in it.
There is a valid, and Scripturally sanctioned role for civil authorities to legislate against immoral actions. LTG has often sounded lately as if he disputes this. This trip into anarchy-land has reaffirmed my anti-libertarian commitment, and why I still find utility in adhering to a label like “conservative.”
December 13th, 2007 at 9:36 am
Mike writes : “There is a valid, and Scripturally sanctioned role for civil authorities to legislate against immoral actions. LTG has often sounded lately as if he disputes this.”
When supping with the secularists, it’s advisable to use a very long spoon. Snuggling up close and pretending they’re not what they are is foolish. Thus it is one thing to want a Catholic State to rule strictly, and very much another to want the secularists to do the same.
December 13th, 2007 at 11:17 am
Mike said: “I’m sure I’d make a hero of myself to libertarians and anarchists everywhere if I campaigned on a platform of eliminating the federal war on drugs and the BATF, DEA, etc., but I’d quickly lose it all by reminding them that this would be to the benefit of states’ and municipalities’ efforts (or lack thereof) in that regard.”
You wouldn’t lose support from me. I’m an originalist conservative: an anti-Federalist Jeffersonian. The Federal Government has no authority under the Constitution to dictate drug laws. Consequently, the law demands that the decision be left to the people of each individual state. If Indiana votes to have drug laws, so be it. If California votes not to, then so be that. The people in their states were intended to be sovereign in this country, not the Grand Poobah in Washington.
December 13th, 2007 at 11:23 am
Again, James, Mike, excellent points. A pint for the each of ya!
December 13th, 2007 at 11:28 am
LTG, I agree. I will not take such an isolationist position that I withdraw from civil society altogether even though it is riddled with secularists and heathens. Neither did the Centurion whom Jesus marvelled at. Neither did Abraham Kuyper in the Netherlands. Neither did Henry Hyde. Neither did a plethora of others who worked in government and affected resoundingly Christian change.
What authorities, do you suppose, was St. Paul, the Roman citizen, talking about in the following passage?
Chapter 13
1 Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God.
2 Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation.
3 For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same.
4 For he is God’s minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil.
5 Wherefore be subject of necessity, not only for wrath, but also for conscience’ sake.
6 For therefore also you pay tribute. For they are the ministers of God, serving unto this purpose.
7 Render therefore to all men their dues. Tribute, to whom tribute is due: custom, to whom custom: fear, to whom fear: honour, to whom honour.
8 Owe no man any thing, but to love one another. For he that loveth his neighbour, hath fulfilled the law.
9 For Thou shalt not commit adultery: Thou shalt not kill: Thou shalt not steal, Thou shalt not bear false witness: Thou shalt not covet: and if there be any other commandment, it is comprised in this word, Thou shalt love thy neighbour as thyself.
10 The love of our neighbour worketh no evil. Love therefore is the fulfilling of the law.
11 And that knowing the season; that it is now the hour for us to rise from sleep. For now our salvation is nearer than when we believed.
12 The night is passed, and the day is at hand. Let us therefore cast off the works of darkness, and put on the armour of light.
13 Let us walk honestly, as in the day: not in rioting and drunkenness, not in chambering and impurities, not in contention and envy:
14 But put ye on the Lord Jesus Christ, and make not provision for the flesh in its concupiscences.
I admire your prudence on the one hand, but I wonder if perhaps it does a disservice to faith in God’s providence through the “princes” and “ministers,” even pagan tyrants like Nero Caesar, whom He has appointed over us.
December 13th, 2007 at 12:31 pm
Mike writes : “I will not take such an isolationist position that I withdraw from civil society altogether even though it is riddled with secularists and heathens. Neither did the Centurion”
Wanting the minimum, because beyond that the government tends to cease to be in line with Catholic thought, is not to withdraw or be an isolationist. Living as a Catholic tends to make oneself enough of a target of the earthly city’s ire as it is, why ask for more?
December 14th, 2007 at 4:36 pm
I guess the quibble is over what the “minimum” is, exactly. Upholding natural law? Is that what you see as the proper parameters for civil government?