Case of judged by 12 than carried by 6: Woman in NYC shooting
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armoredman
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Slightly wrong wording, I think - a state POWER doesn't trump the BoR or the Constitution in a perfect world, because the BoR or Constitution already recognizes that power being reserved TO the states, not the federal government. In practice, not so much due to court decisions that "just don't add up". My layman's read - not a lawyer in any way shape or form.
FL-NC
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No outcome would surprise me at this point. I don't expect her to not be charged with SOMETHING though.
How would "community support" help her materially?
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. All states signed onto the BOR/Constitution. That's why we have the "United States of America" In constitutional law I think the Federal government prevails over the states. That's why you can smoke a joint in California without getting in trouble with the state, but federal authorities if they chose to could bring drug charges against you.
That said the SCOTUS has ruled the states can put "reasonable" limitations regarding 2nd amendment issues which very well could mean she is in trouble. SCOTUS did a poor job in my opinion in its rulings by not better defining that issue when it comes to the second amendment.
That said the SCOTUS has ruled the states can put "reasonable" limitations regarding 2nd amendment issues which very well could mean she is in trouble. SCOTUS did a poor job in my opinion in its rulings by not better defining that issue when it comes to the second amendment.
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Theohazard
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Please tell me you’re kidding. George Zimmerman deserved to be thrown under the bus. The man was an over-zealous idiot.
The evidence indicated that he provoked a fight with a teenager who was simply walking home from the store. That teenager proceeded to kick his ass. Zimmerman’s only recourse was to shoot that teenager.
I think the jury decided correctly in that case: The evidence seemed to show that at the time of the shooting, Zimmerman’s head was being smashed into the concrete. So I think the shooting itself may have been legally justified, or at least there’s no good evidence that it wasn’t. But that doesn’t mean that Zimmerman didn’t make a huge mistake.
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This sort of thing has happened before. In 1984, Bernie Goetz defended himself with an unlicensed handgun in a New York subway from some armed robbers. He was tried for various assault related crimes and the weapons charge. He was acquitted of the assaults (the jury found his use of force to be justified self defense); but he was convicted and went to jail on the weapons charge (and he was hammered in a subsequent civil suit).
Of course that was before Heller and McDonald, but whether this would be a good vehicle for a constitutional challenge might turn on information we don't have. It would be a good thing if one of the RKBA advocacy groups could arrange for qualified legal counsel for her and for her lawyer to look at the possibility of a constitutional challenge.
Of course that was before Heller and McDonald, but whether this would be a good vehicle for a constitutional challenge might turn on information we don't have. It would be a good thing if one of the RKBA advocacy groups could arrange for qualified legal counsel for her and for her lawyer to look at the possibility of a constitutional challenge.
Enough about Zimmerman. Stick to the case at hand or we are done.
RON in PA
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My prediction: she will go to trial and very likely be acquitted of assault with a deadly weapon, but be convicted of possession of a handgun without a permit and given a prison term for that offense. New York State and especially NYC do not recognize the Second Amendment especially when handguns are involved. She should have gotten herself a shotgun which is more tolerated in NYC.
This is a case of another person going to or moving to an area of the US that is basically anti-gun and not bothering to do their homework.
I find it sad that she is caught up in a legal system that will probably cost her everything instead of giving her a little grace and understanding.
I find it sad that she is caught up in a legal system that will probably cost her everything instead of giving her a little grace and understanding.
alsaqr
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It may take awhile. A friend of mine waited over one year for his NY City permit for his inherited shotgun.
http://nyfirearms.com/forums/general-firearms/47363-rifle-shotgun-permit-nyc.html
Tommygunn
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DELETED PER POST #33. Sorry.
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That boat sailed with the 13th, 14th, and 15th Amendments, when interpreting the Constitution, later amendments revise both the Constitution and earlier amendments (for example the prohibition). If you note, these amendments specifically refer to states' power being limited. Stephen Halbrook, a noted legal scholar, wrote about the specifics of the 14th amendment and lawmakers' intent. A significant part of it was that state powers to regulate firearms be limited in order to allow newly freed slaves (and others who sided with the North) be able to protect themselves.
Note also the last part of the phrase in the 10th, " . . . States respectively, or to the people". That is states cannot assert absolute sovereignty as some powers can never properly be delegated to a state government nor the federal government--thus the people retain them e.g. the power to change the form of the regime and so forth. Laws affecting natural rights negatively were viewed as beyond a state's power to enact. Even in the aftermath of the American Revolution, no state dared claim absolute sovereignty nor even absolute popular sovereignty (the absolute right of the majority ala Rousseau). Thus, no one with real authority argued that states could violate the natural rights of the individual in that state. We don't begin to see the claims to absolute state powers and strict separation between federal and state powers until later in our constitutional development culminating with the thoughts of John Calhoun. John Marshall as chief justice leading a relatively unified court dismissed many challenges to the national supremacy over the states but in Barron v. Baltimore, refused to apply the Bill of Rights to the states. In part, the 14th Amendment specifically overturned that decision as well as Dred Scott. However, the Supreme Court in the 1870's through the 1890's, interpreted the 14th as narrowly as possible that created legalized segregation, limited the power of the federal government to regulate the new national economy and state actions, and so forth. See the Supreme Court's decisions in the Slaughterhouse Case, the Civil Rights Cases, Plessy v. Ferguson, and Lochner v. NY for examples of what eventually had to be undone by the Supreme Court.
Confusion arises primarily because we keep the text of our amendments separately rather than going back and revising the wording of the main document. The relatively broad and somewhat vague language used by drafters does not help. That is also why states that have a lot of constitutional amendments eventually simplify through a new constitution that includes all of those amendments in the main text.
The currrent makeup of the Federal courts, IMHO, will not take up her case. Not being a Constitutional scholar, I would have thought that Heller and McD would have broken the restrictive laws and procedures in NY and NYC over obtaining a permit and owing a handgun in the state and city. But they didn't. I wonder why. How are processes that take over a year and may turn down home ownership of a handgun still viable for NY and NYC?
P5 Guy
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http://www.nydailynews.com/new-york/story-bernhard-goetz-subway-vigilante-article-1.815968
As already stated Goetz got off on the assault but not on the permit issue.
And he was out in public not at home.
But times and attitudes have changed. I see a long sentence in her future
As already stated Goetz got off on the assault but not on the permit issue.
And he was out in public not at home.
But times and attitudes have changed. I see a long sentence in her future
Speedo66
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One hope is a plea to a lesser charge, but supposedly in NYC criminal possession of a firearm is a one year mandatory, which is not supposed to be pleaded down. I say supposedly because I’ve seen it pleaded down “in the interest of justice”.
Her other hope is jury nullification, where the jury understands the law and based on the facts should come to a guilty verdict, but decides to find the defendant not guilty anyway. A court can overturn an incorrect verdict though.
Her other hope is jury nullification, where the jury understands the law and based on the facts should come to a guilty verdict, but decides to find the defendant not guilty anyway. A court can overturn an incorrect verdict though.
Not in a criminal case. It's long been recognized that a jury verdict of acquittal in a criminal trial can not be questioned or challenged, even when inconsistent with the evidence and law (U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997)).
CoalTrain49
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Someone mentioned the NRA. I think more than likely it would be the SAF. Perfect opportunity for a constitutional challenge if the circumstances are favorable. NYC better be very careful with this one.
CoalTrain49
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Can she be tried without a jury? What if she wasn't acquitted by a jury?
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massad ayoob
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Info is scarce, but...
The reports say she moved to NYC RECENTLY, and that the man she was forced to shoot was her ex-boyfriend. This indicates a distinct possibility that she fled to NYC to escape from him. This would in turn indicate foreknowledge of threats, his criminal record, and a clear and present danger he presented to her, as perceived by a reasonable and prudent person.
This would seem to open the door to what is known in the common law as the doctrine of competing harms, and in New York state IIRC as the doctrine of necessity. It says in essence that one is to be forgiven for breaking the law in a situation where following the law would cause more human injury than breaking it, as seen by the the reasonable and prudent person. Not a perfect defense to the gun possession charge, but a competent one, and certainly grounds for logical and compassionate souls in the District Attorney's Office to choose not to prosecute for that. The shooting itself, looking only at what has been reported thus far, appears to be justified.
The reports say she moved to NYC RECENTLY, and that the man she was forced to shoot was her ex-boyfriend. This indicates a distinct possibility that she fled to NYC to escape from him. This would in turn indicate foreknowledge of threats, his criminal record, and a clear and present danger he presented to her, as perceived by a reasonable and prudent person.
This would seem to open the door to what is known in the common law as the doctrine of competing harms, and in New York state IIRC as the doctrine of necessity. It says in essence that one is to be forgiven for breaking the law in a situation where following the law would cause more human injury than breaking it, as seen by the the reasonable and prudent person. Not a perfect defense to the gun possession charge, but a competent one, and certainly grounds for logical and compassionate souls in the District Attorney's Office to choose not to prosecute for that. The shooting itself, looking only at what has been reported thus far, appears to be justified.
Instead of my trying to paraphrase this information, I'll just link to the source, Cornell University Law School, Legal Information Institute:
In other words, it can be complicated, and there isn't necessarily a clear answer. But in any case, if a defendant is hoping for a verdict inconsistent with both the facts and the law, a bench trial is a bad idea.
CLP
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If you have the means to move to NYC surely you have the means to live elsewhere.
Hokkmike
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Are states allowed to put reasonable restrictions on the exercise or religion and free speech?
I think not. What is the point of having a Bill of Rights if politicians can nullify them?
Yes, actually, they can. Time, manner, and place restrictions come to mind. There are (obviously) limits on how far such rights can be regulated, but they can be regulated to some degree. Think: parade permits.
Sistema1927
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