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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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"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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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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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 10-21-2011 at 12:53 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.
Regards, SwissFluCase
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"We don't discuss the governor's arsenal in detail" - Brown spokeswoman Elizabeth Ashford |
#3
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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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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#4
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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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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#7
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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. |
#8
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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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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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#11
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http://www.sharewareebooks.com/eBook...t_Constitution Quote:
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Look at the tyranny of party -- at what is called party allegiance, party loyalty -- a snare invented by designing men for selfish purposes -- and which turns voters into chattles, slaves, rabbits, and all the while their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction... Mark Twain Last edited by aileron; 10-21-2011 at 8:31 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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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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#14
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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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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 10-22-2011 at 8:57 AM.. |
#18
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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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#19
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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. Regards, SwissFluCase
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"We don't discuss the governor's arsenal in detail" - Brown spokeswoman Elizabeth Ashford |
#20
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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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"personal security, personal liberty, and private property"--could not be maintained solely by law, for "in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." - William Blackstone |
#21
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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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"personal security, personal liberty, and private property"--could not be maintained solely by law, for "in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." - William Blackstone |
#23
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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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#24
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Never attribute to stupidity that which can adequately be explained by malice.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
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