practical challenge of laws against concealed firearms carry?
This is a discussion on practical challenge of laws against concealed firearms carry? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I've been doing some informal legal research specifically regarding victimless crime (or the more politically correct term, "public order crime"). Basically, it stands at the ...
May 26th, 2007 03:53 AM
practical challenge of laws against concealed firearms carry?
I've been doing some informal legal research specifically regarding victimless crime (or the more politically correct term, "public order crime"). Basically, it stands at the moment that any law punishing an act that does not have a direct victim, instead punishes those who victimize "society." While the victimization of society cannot be clearly cut, it is usually described as deviating from social norms, or moral values, and thus the act in question is disruptive to the point where it is supposedly deemed that criminalization of said act is necessary to punish those who partake.
The point of this thread is: How is the concealed carrying of a firearm, or anything, for that matter, disruptive to society, or anyone or anything? By definition it draws no attention to itself. So I propose, that not only is there no physical victim to this crime, but there is no "greater good" or sense of value/decency that is being compromised, either.
I wonder if this argument would be enough to win over a jury... What do you think?
May 26th, 2007 08:29 AM
Prosecuting attorney's try to get soccer moms, and those that are easily sold on "he's a bad guy". Logical thinking, and taking on semi deep or complex thoughts are not desirable in a jury (especially if the prosecution has a weak case).
Defense lawyers on the other hand - hit and miss on what they look for. Some try to get the type that say "He is too good looking to be a murder" and others like those that can take a simple matter, and twist it around until it is so complex that no matter how you untwist it "reasonable doubt" is still present.
In short - don't plan on seeing this argument used anytime soon. It isn't something tangible - that a normal run of the mill jury can wrap there hands (or minds) around and fully comprehend.
"Gun Free Zones" is where only criminals carry guns.
May 26th, 2007 10:59 AM
You're assuming this would be an accessory charge defended at the same time as self defense shooting. What if you were just pulled over by a cop, who decided to search you/ask you if you have any weapons on you, and either you don't have a valid permit, or your permit isn't valid in the area you were stopped at.
Or you could conceivably file a lawsuit against the state, with the intent to get the law struck down in the first place, similar to how that Parker case was started in D.C.
May 26th, 2007 11:43 AM
Sometimes you can call and ask nicely :)
That's what I did: http://www.georgiacarry.org/cms/2007...stock-gun-ban/
May 26th, 2007 04:10 PM
Originally Posted by General Geoff
You make a very good point.
They will argue that having the gun on you leaves you able, at your own whim, to commit mayhem when and where you decide to, so society is served by prohibiting you from keeping the means to do that with you as you meander about.
I think it's bogus, too. The only time that an actual crime would be committed, in my view, is if you needlessly took out the gun and caused that disruption to society that you mentioned. As long as it's not visible, and not being used, you're correct -- society is not suffering. What "they" will say is that you're leaving society vulnerable to suffering.
In that case, why stop at banning carry of the guns? Why not scale back one more level and say you can't even keep them in your home? Because I mean, if society is "disrupted" or endangered when you are carrying the gun around, because you could take it out and use it, the same potential for disruption exists if the gun is waiting in your home for you to use criminally, as well.
As for whether this argument could win over a jury -- I'll bet the judge would not even allow it to be presented.
May 26th, 2007 04:14 PM
You know, it's not too long in the USA's distant past when a crime required an actual victim. Murder required a body, theft required someone to be fleeced and/or evidence of stolen goods, and so on. I'd think this is a good and reasonable minimum definition of a crime, that for a crime to have occurred there must be a victim and/or other objective, overt evidence of a crime having occurred. Otherwise, there is no crime. To do otherwise means a long, slippery slope toward tyranny. That's a slope we're squarely on, in the US.
Today, so many criminal statutes are merely fears put into action, in an attempt to criminalize the feared in advance of any action that ends with a victim. To my way of thinking, this is too "early" in the process. No crime has happened, yet, by definition (IMO).
Do I think such an argument would sway a jury? Perhaps, if crafted well.
Trouble is, in the U.S. people are well used to the idea that pre-actions can be criminalized, that this is a lawful thing to do, and that this act itself does not create unreasonable victims of society's fears. Heck, probably a third of all criminal codes could be eliminated if we did away with such things. Such an argument might be attractive to some, but I'd doubt that the peons that serve on juries could get past the basic "math" related to this concept: that fewer things outlawed would mean more things are allowed, resulting in nothing other than flourishing crime ... and we can't allow that, now, can we? They'd get stuck on that, I think, and it would go nowhere. In other words, people's fears would blind them to rationality. And on the legislative end, anything that sought to raise the standards of criminalization would reduce the scope of the unreasonable amount of power wielded by those in power, and that will be defended to the last dying breath by them's that got 'em.
Accounting has G.A.A.P. The military has R.O.E. The U.S. citizens have the Constitution, which dictates the basic powers and limitations on government. Trouble is, it's fairly wide open via its "loopholes," allowing much to be put into law that is nonsensical and non-rational. It's so wide open in terms of scope that we've got a Wild West of legal wrangling in an attempt to salve our mutual fears.
I'd think the constitutional angle would have more likelihood of making a dent. Framing an amendment to the Constitution that required an actual victim and/or overt proof of actual commission of a crime might have a chance at blowing away all the chaff that's in the criminal codes, and probably much beyond that. I think there'd be a great cleansing result. Its purpose would be to act as a minimum standard, a "limitation" if you will on what's required for a crime to have been committed.
The judiciary seems to be big on limiting court actions to those with standing. One would think that it's not much of a stretch to require crimes to have a victim, else there's similarly no standing to bring any claims in criminal court.
Would such a thing be likely of happening, though? With what I see of the current climate, where rationality and forethought takes a back seat to fears, I don't see it getting any traction at all.
Last edited by ccw9mm; May 26th, 2007 at 05:21 PM.
Reason: spellin' monkey got me
May 26th, 2007 04:24 PM
Originally Posted by ccw9mm
This is why we have laws that say you can't carry even a concealed pocket knife in some places. The reason is not that people are harmed by your carrying the knife; it's that people are worried about you having the knife easily available to you if you should decide to commit an actual crime (malum in se) against someone!
It's like forbidding your kid to have crayons in case he might decide to write on the walls.
Sane people don't go for this kind of muddleheaded attempt to eliminate all risk everywhere. It's nonsensical, and it has no logical end.
May 26th, 2007 11:45 PM
There is a victim- it is the state. There is a statute and you violated it. Same as speeding, littering, jumping off of a bridge into a lake, or any other victimless "crime" that is not wrong in any way other than laws are written that says it is.
"The only people I like besides my wife and children are Marines."
- Lt. Col. Oliver North
May 27th, 2007 12:13 AM
Uh, no. The "state" is merely the People in the larger sense. Show the "body," if there's a victim. Mere offended sensibilities in the abstract sense don't count. I mean: a body. A victim. Someone actually, physically harmed via that firearm. It doesn't exist, since the mere fact of one's ability to mount a defense if attacked hasn't harmed anyone. Might well in the future, but that's not good enough.
Originally Posted by Echo_Four
Nobody is harmed by my wearing the color blue. Nor by your studying Kant. Nor by someone choosing to have the ability to defend against felonious assault. Nor by someon opting out of the mainstream by working for him/herself. Nobody is harmed by carriers of firearms until an overt act pokes a hole in someone via that firearm's usage. Short of that, there are merely people who are offended by the ability of such people to defend themselves. That ability to mount a defense isn't a crime merely because someone has gotten away with the crime of saying (via statute) that it is.
May 27th, 2007 02:23 AM
In the old days
In the old days, a crime required a victim. Now that so many acts have been outlawed, all the "legislators" have left to legislate is prior restraint. No longer actions, but thoughts, and the fears of the cowardly "legislators". Excuse me, is my bitterness showing??
When the chips are down, only hits count
Train as you fight, fight as you train.
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May 28th, 2007 12:37 PM
As a criminal prosecutor, I think the comments on this post miss the point. Law doesn't just exist to be able to punish people based on fear. At some point in time, your legislators got together and said something is a problem and we need a law to eliminate a threat. Most of the time laws are created because someone did something that society didn't like. After they did whatever it was, people realized that there was no laws that made it illegal. The legislator, based on societal demand, create law to address the problem. Thery don't do it out of fear of some anticipated problem. Most of the time, the violations are already taking place. Legislators, most of the time are reactive. They rarely have the forsight to solve problems before they happen.
Bottom line is if you don't like the law as it sits, talk to your legislator. I don't have the luxury of choosing to only prosecute those who break the laws that I agree with. My duty and responsibility is to prosecute all who I believe have violated CA state law. I don't get to choose. Don't blame your prosecutors for doing the job that they were hired to do. Selective prosecution is just as dangerous a concept as no laws at all or too many laws. No one wants a completely subjective prosecutor deciding not only who they will prosecute but also what laws are going to be enforced and which ones will not.
As for concealed carry, I have never tried a case against someone who has carried a concealed weapon without a license. The argument I would put forward is simple. All of the people on this site took the time to get the training required, pass tests, and receive a license. Why did they do all of these things? Because the law requried it of them and they are law abiding citizens. A defendant who carries without going through all of that violates the law and degrades and diminishes those who did the correct thing. I would argue that as a society we want people who carry concealed to be a rule follower and not a rule breaker. People who carry without a license don't respect and obey the law as you and I do. We follow the law even when we don't necessarily agree with them. People who don't follow the simple rule of you can't carry without a license are also less likely to follow other rules. They range from not speeding up and to when they can use a weapon.
I have had cases of people carrying weapons without licenses (no jury trials though) and I can't recall a case where they were normal law abiding citizens. Every case that I can remember involved someone who had broken the law on numerous prior occasions. Sometimes people forget that as a prosecutor, I have access to most if not all of a person's criminal history right down to even simple traffic violations. Based on their prior conduct I do have an insight as to what kind of person I am dealing with: a law abiding citizen or a law breaking citizen.
As for requiring a victim or a body or tangible pieces of evidence, this is based, in my opinion, on a CSI view of the world. It is based on the assumption that you can always find more evidence, you can always find the murder weapon and you can always find a body. However, that is simply not the case. I wish that we always had real tangible direct evidence. That is simply not reality. So then the question is, do you let the murderer walk free simply because he was better than other murderers in covering up his crime? Just because this defendant is better than most, does that allow him to continue to walk the streets? Does he get away with it even though you can prove he did it without the murder weapon or even the body of the victim?
I would dare so that none of us would want prosecutors to let people off the hook simply because there wasn't the ideal amount of direct powerful evidence. In my jurisdiction, my office recently completed a jury trial based almost entirely on circumstantial evidence. The man killed 5 members of his own family, including three children. He murdered them in cold blood. However, no murder weapon could be found and those who placed in town at the time of the murder were limited in their testimony. They only saw him for a few moments. The prosecution put on a ton of circumstantial evidence and proved that only he had the motive and opportunity to commit the crime. The defendant took the stand and lied almost 50 times.
The jury saw through his lies and convicted him. That is other part people forget. Juries are made up of regular common people. When I review a case, it is those people I have in my mind. It is 12 of my neighbors that I have to convince of any defendant's guilt.
Anyway, the point is, that in a perfect world, the kind of direct evidence that those who posted on this website want would be great. I would love it if everyone of my cases had the kind of direct powerful evidence that you want. However, my experience has been that in the real world that is not practical nor is it reality. Also, I would point out that most of the DA's I know work at substantially lower pay than almost any other lawyer. We do it anyway because we believe that we make a difference. My goal is to protect society and punish those who violate our laws. I am not trying to screw someone over just because I can. Most prosecutors I know try to do the right and just thing. Our job is to seek justice. That is not always the popular thing to do but it is the right thing to do.
May 28th, 2007 12:58 PM
Anti-carry laws were exactly this: enacted against the fear of usage by the general population. Which was rarely the case, in actuality. It has nearly always been the criminals acting out.
Originally Posted by cali-da
Without tangible evidence, who can say he's a murderer? Those with a whim? IMO, it takes more than supposition and pointing a finger. There are some places in the world where this is all it takes. Not here, yet. Not if we don't allow that low standard to be used.
I wish that we always had real tangible direct evidence. That is simply not reality. So then the question is, do you let the murderer walk free simply because he was better than other murderers in covering up his crime?
"Just because"? Without proof, instead basing on supposition and circumstantial evidence, yes.
Just because this defendant is better than most, does that allow him to continue to walk the streets?
The point was about minimal, factual evidence. Not the ideal amount. In the case of a murder, IMO, that takes a body and/or a weapon and/or being caught on film or in the direct sight of a number of credible witnesses. Short of at least one or more of these elements, there is, effectively, no crime proven.
... let people off the hook simply because there wasn't the ideal amount of direct powerful evidence.
The bar has been lowered in the last ~25yrs to allow for fears and supposition to hold much water, for thoughts and predispositions to have legal weight ahead of action. In the psat 5yrs, folks have been jailed over such fears. Witness the whole of the U.K., with its laws that fully support being accused and held despite lack of proof. Thug dictatorships around the world operate in that way. We're starting to allow our governing public servants to behave just as badly, and it's being codified into law in order to justify such behavior. It's a bad, slippery and irreversible slope, that.
Otherwise, good post. It's heartening to see folks thinking so deeply about such things. Promising, even. Like many, you've probably seen much of the worst of society. For a time, I used to watch trials for sport, to see how the applicable laws were dissected and applied. In many instances, the travesty wasn't that a criminal got off; it was, rather, that the misapplication of laws resulted in a form of "justice" that wasn't in the minds of anyone at the start of the proceedings.
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