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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-21-2011, 12:51 PM
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Default "Mens Rea" vs "Ignorance Of The Law" Doctrines and Gun Laws

I'm not a lawyer but when I read this article I couldn't help but think of the lawsuit challenging the California "mean looking gun" ban as too confusing. That it was unenforceable because not even the DOJ can make a definitive judgement of what's legal and what's banned.

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English common law contains a tradition, known as mens rea — Latin for “a guilty mind” — which is intended to protect people from prosecution for unintentional offenses. According to the doctrine of mens rea, if you did not knowingly commit a crime, then you are not a criminal, and should not be treated like one.
Unfortunately many courts have abandoned "mens rea" as an impediment to the ever expanding reach of government and replaced it with the doctrine of "ignorance of the law is no excuse".

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According to a recent Wall Street Journal article which detailed many such exemplary abuses, the roster of federal crimes, which stood at 20 in the original criminal act of 1790, has now grown to at least 4500 statutory offenses, with unknown thousands of additional grounds for criminal prosecution contained within obscure regulations generated in ever burgeoning amounts by government agencies.

It has thus become impossible for an ordinary citizen to know what is legal and what is not. In fact, as anyone who has ever tried to assure his or her legal safety by asking for guidance from the IRS or EPA knows, the agencies themselves don’t have a clue, and are prompt to disclaim any immunity to prosecution for actions based upon their own advice.
It's this massive and ever growing morass of unknowable laws that make it so hard (if not impossible) for even the most well intentioned Californian to get through a year much less a lifetime without violating at least one criminal law and quite possibly committing at least one felony. In the case of the "mean looking guns" ban the citizen (and confused officer) has to fret over the differences between a flash hider and a muzzle brake, over what is legally a magazine release tool, over 11rd magazines vs defective 10rd magazines etc. Any minor mistake could lead to felony charges. The same with knife laws.

I'm not sure I buy into the author's premise that we need a constitutional amendment at the federal level (possibly at the state level) when a statute enshrining mens rea as the official standard of review should have the same effect. In other words to prosecute a citizen the DA must show that a law so obviously passes the common sense test (murder, rape, robbery, theft through fraud etc) that a claim of ignorance defies belief.
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Last edited by sholling; 10-21-2011 at 12:53 PM..
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Old 10-21-2011, 1:05 PM
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Not only would I agree with an amendment as such, I would also like to see a prohibition on the ability for Congress to delegate its authority.

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Old 10-21-2011, 1:21 PM
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Originally Posted by SwissFluCase View Post
I would also like to see a prohibition on the ability for Congress to delegate its authority.
I agree with you there. Congress should not be able to delegate the power to create rules that have the force of law. Case in point the couple suing the EPA over a $35/k day fine for attempting to build a home on their own land.
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Old 10-21-2011, 1:27 PM
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Overturning the two or three Supreme Court decisions which allow for laws to regulate everything under the sun is an essential part of any such effort or it's all for nothing. Their neglect of duty is a big reason we're in this mess.
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Old 10-21-2011, 1:55 PM
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Old 10-21-2011, 2:19 PM
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Originally Posted by yellowfin View Post
Overturning the two or three Supreme Court decisions which allow for laws to regulate everything under the sun is an essential part of any such effort or it's all for nothing. Their neglect of duty is a big reason we're in this mess.
You might want to read Professor Randy Barnett's book "Restoring the Lost Constitution: The Presumption of Liberty". Just don't try reading it on a Kindle because the Kindle formatting is awful. He addresses the SCOTUS' reading out of the Contracts Clause, the reading out of the POI clause, and the abuse of the Commerce Clause. I'm still muddling through the Kindle version but it's an interesting read.
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Old 10-21-2011, 2:19 PM
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Originally Posted by sholling View Post
It's this massive and ever growing morass of unknowable laws that make it so hard (if not impossible) for even the most well intentioned Californian to get through a year much less a lifetime without violating at least one criminal law and quite possibly committing at least one felony.
You're way off on your time frame. I don't think you can get through the day without violating some Byzantine law. It's particularly true with Vehicle Codes. A CHP friend mentioned to me that in his entire career, he had never followed anyone for any significant distance without observing some citeable traffic violation by the driver.

It can even reach Alice in Wonderland proportions. I recently pulled well off to the side of a freeway to take a cell phone call I didn't want to answer while driving. Up pulls a motorcycle CHP, who asked me why I'm stopped. I explain that I did not want to answer my cellphone while driving. He responded that it's a code violation to pull off to the side of a freeway unless it's for safety purposes. I asked him if it was OK to do this if the call involved an emergency. He thought about it for a moment, grinned and and said, "Yeah, that's OK, but it's gotta be your emergency, not theirs", and off he went looking for better pickings. Sure enough, less than a mile down the freeway, he found one.
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Old 10-21-2011, 2:32 PM
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"There's no way to rule innocent men. The only power any government
has is the power to crack down on criminals. Well, when there aren't
enough criminals, one makes them. One declares so many things to be a
crime that it becomes impossible to live without breaking laws."
-- Ayn Rand, "Atlas Shrugged"

This about sums up CA lawmakers...
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Old 10-21-2011, 2:59 PM
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Quote:
Originally Posted by sholling View Post
I'm not a lawyer but when I read this article I couldn't help but think of the lawsuit challenging the California "mean looking gun" ban as too confusing. That it was unenforceable because not even the DOJ can make a definitive judgement of what's legal and what's banned.

Full Article

Unfortunately many courts have abandoned "mens rea" as an impediment to the ever expanding reach of government and replaced it with the doctrine of "ignorance of the law is no excuse".



It's this massive and ever growing morass of unknowable laws that make it so hard (if not impossible) for even the most well intentioned Californian to get through a year much less a lifetime without violating at least one criminal law and quite possibly committing at least one felony. In the case of the "mean looking guns" ban the citizen (and confused officer) has to fret over the differences between a flash hider and a muzzle brake, over what is legally a magazine release tool, over 11rd magazines vs defective 10rd magazines etc. Any minor mistake could lead to felony charges. The same with knife laws.

I'm not sure I buy into the author's premise that we need a constitutional amendment at the federal level (possibly at the state level) when a statute enshrining mens rea as the official standard of review should have the same effect. In other words to prosecute a citizen the DA must show that a law so obviously passes the common sense test (murder, rape, robbery, theft through fraud etc) that a claim of ignorance defies belief.
I'd give a second option if the government doesn't like your suggestion: Make it an automatic felony for ANY civil servant/officer of the law/politician, etc. to write or attempt to enforce ANY law that either violates the Constitution or common sense.

I would also like to hold all of these "authorities" to at LEAST the same bar that the citizens are held to. There should be no writing or enforcement of a law that the official doesn't 100% understand. Ignorance is NO excuse.

Attempting to arrest or charge a citizen for a law that an officer/DA doesn't understand, only to find that the arrest or charges weren't valid should result in immediate felony charges to all involved officials.

It may sound harsh and unreasonable, but that is PRECISELY what "ignorance is no excuse" amounts to for citizens. Why am I expected to be more of an expert on the law than the officer or DA who charges me with violation of said law?

I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 10-21-2011, 3:03 PM
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Quote:
Originally Posted by cruising7388 View Post
You're way off on your time frame. I don't think you can get through the day without violating some Byzantine law. It's particularly true with Vehicle Codes. A CHP friend mentioned to me that in his entire career, he had never followed anyone for any significant distance without observing some citeable traffic violation by the driver.

It can even reach Alice in Wonderland proportions. I recently pulled well off to the side of a freeway to take a cell phone call I didn't want to answer while driving. Up pulls a motorcycle CHP, who asked me why I'm stopped. I explain that I did not want to answer my cellphone while driving. He responded that it's a code violation to pull off to the side of a freeway unless it's for safety purposes. I asked him if it was OK to do this if the call involved an emergency. He thought about it for a moment, grinned and and said, "Yeah, that's OK, but it's gotta be your emergency, not theirs", and off he went looking for better pickings. Sure enough, less than a mile down the freeway, he found one.
How can he say that it has to be YOUR emergency, not THEIR emergency? For example, if I take an emergency call about a patient that needs immediate treatment, that is not MY emergency. If it is the police chief that I am treating, is the traffic cop really saying that I should let him die to not obstruct the road side?
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Old 10-21-2011, 8:23 PM
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Quote:
Originally Posted by sholling View Post
You might want to read Professor Randy Barnett's book "Restoring the Lost Constitution: The Presumption of Liberty". Just don't try reading it on a Kindle because the Kindle formatting is awful. He addresses the SCOTUS' reading out of the Contracts Clause, the reading out of the POI clause, and the abuse of the Commerce Clause. I'm still muddling through the Kindle version but it's an interesting read.
Hey... thanks for that... just to let everyone know... this book is available to read free online at:

http://www.sharewareebooks.com/eBook...t_Constitution

Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
Oh man... tears in my eyes... I swear. Now thats funny... *sigh* and sad.
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Old 10-21-2011, 8:41 PM
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Another book worth reading is The Politically Incorrect Guide to the Constitution. It's an excellent history of the means by which the Constitution
has been subverted over and over again over the last two-hundred-odd years.
Cap
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In the final analysis, rights in a Republic are protected by the people themselves. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.... Keep educating your neighbors and friends about the legacy of freedom that founded this nation and remind them what it takes to keep it free. --Don Kilmer
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Old 10-21-2011, 11:01 PM
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SCOTUS recognized in Lambert v California (1957) and Cheek v US (1991) that ignorance of the law can be an excuse. In Lambert the SCOTUS found that a felon who had just moved to Los Angeles could not be expected to read all the city codes and know that felons were required to register with the city. It is said that lower courts have largely ignored Lambert, reverting to "ignorance is no excuse". Even if ignorance may be an excuse in some situations, such situations will be rare.
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Old 10-22-2011, 6:03 AM
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doesn't the ignorance = no excuse bit encumber the government agency enacting an ordinance to publish said ordinance in such a way that it's then generally available to the public at large? If you create some law which can allow the state to deprive someone of life/lib/pOh upon violation then it would seem to follow that you must notify those that are being legislated upon.

If that's not the case, then I have lost enough faith in the state of the state to call for open revolt.
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Old 10-22-2011, 8:39 AM
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Here in NV recently a D.O.T bulldozer accidentally killed 2 women who had pulled over to make a phone call.

Stupid laws/unintended consequences
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Old 10-22-2011, 8:53 AM
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Quote:
Originally Posted by r3dn3ck View Post
doesn't the ignorance = no excuse bit encumber the government agency enacting an ordinance to publish said ordinance in such a way that it's then generally available to the public at large? If you create some law which can allow the state to deprive someone of life/lib/pOh upon violation then it would seem to follow that you must notify those that are being legislated upon.
New laws and regulations are published but how many of the 4500 (author's number) federal criminal laws, several thousand federal regulations that carry the force of law, several thousand state criminal laws, and how many thousands of municipals codes can the average citizen reasonably be expected to know and navigate? It's that volume of laws that makes it nearly impossible for anyone living outside of a monastery to go through an entire year without inadvertently violating at least one of those laws.
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Old 10-22-2011, 9:08 AM
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then it would seem that the whole of modern american law is in violation of the spirit of the constitutional protections afforded us all would it not? Does that not signal something?
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Old 10-22-2011, 9:14 AM
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Thank you for posting this. I actually came here to post the same thing but you beat me to it. This is one of the most important problems we face. Mens Rea was developed in the spirit of freedom, ignorance of the law is no excuse is a tool of tyrants.

This thread also provided a cool sig line.
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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 10-22-2011, 10:43 AM
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Over criminalization is why citizens are beginning to refuse to cooperate with law enforcement. The only effective and practical remedy available to the average citizen is to refuse police contact, and to reserve all rights no matter what. The Martha Stewart case is a perfect and well known example.

In the end, the "Ignorance Of The Law" doctrine will have the unintended consequence of making law enforcement far less effective than it could be.

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Old 10-22-2011, 12:56 PM
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Quote:
Originally Posted by cruising7388 View Post
He responded that it's a code violation to pull off to the side of a freeway unless it's for safety purposes.
i would have explained the legislature has deemed talking while driving is a public safety hazard, therefore, pulling over to talk is for safety purposes
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Old 10-22-2011, 12:59 PM
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Ignorance of the law doesn't seem to have neg consequences when its police making false arrests...not know the laws concerning UOC and/or OLL's
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Old 10-22-2011, 2:10 PM
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Also, no regulation should have the force of law without actually being a law.
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Old 10-22-2011, 2:20 PM
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"Unintended" consequences happen with such regularity that I honestly don't believe they're unintended anymore. Something repeated that often over that long a span of time can't be an accident.
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Old 10-22-2011, 3:51 PM
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Quote:
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"Unintended" consequences happen with such regularity that I honestly don't believe they're unintended anymore. Something repeated that often over that long a span of time can't be an accident.
This is why I argue that the reverse of Hanlon's Razor applies to government:

Never attribute to stupidity that which can adequately be explained by malice.
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