Jury nullification

There is an interesting movement out there called "jury nullification", which is where the jurors refuse to convict a person even if the facts and the law show that he is guilty. Perhaps the best example of this is the O.J. Simpson case where the jury felt that O.J. was wrongly being prosecuted. O.J. got away with murder despite the evidence, and unfortunately confessions which were never entered into evidence (e.g., at least the one to Rosie Greer, subsequently one to Christie Prody).  It's O.K., O.J., you can admit now since they can't get you.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law, as it is laid down by the court. Sparf v. United States, 15 S.Ct. 273, 282 (1895). In other words, the Jury is the trier of fact and it is the Judge who is the trier of law. The Jury is not supposed to use its own opinion of whether the law is fair or not, but whether the facts in the case are such that the law applies.

There are many problems with the concept of jury nullification, although it is a concept much favoured by the defence bar. One of which is that it turns legal certainty into a crap shoot. Jurors who will nullify are also likely to be ones who would convict based upon their capricious attitude. Additionally, I have noticed that most of the folks who like "jury nullification" also dislike "activist judges". What is the difference between these two concepts? Isn't one who would base his decision as a juror upon his like or dislike of something which is not related to the case just as bad as an activist judge? Isn’t an activist judge only one who interprets the law in a way that those who use that label dislike?

Another problem with jury nullification is that the jury system could be changed if there are too many hung juries. England already allows for non-unanimous juries, that is where a majority will find the defendant guilty.

Can't happen here? In 1972 the Supreme Court permitted non-unanimous juries for criminal cases in state courts, in approving 10-2 verdicts in Oregon courts and 9-3 verdicts in Louisiana. Abramson correctly argues that this bodes ill for the jury. "In Johnson v. Louisiana...Johnson argued that Louisiana's acceptance of a 9-3 jury verdict in his case violated his due process rights under the Fourteenth Amendment to have his guilt proved beyond a reasonable doubt. By definition, no jury could reasonably find a defendant's guilt proved beyond a reasonable doubt, he argued, when some of its members continued to harbor doubts." In Apodaca v. Oregon, the defendants argued that "unanimity was essential to enforcement of their Sixth Amendment right to be tried before cross-sectional juries. Only the unanimous verdict rule could guarantee effective representation to minority views; anything less empowered majorities simply to outvote minorities." Unfortunately, the Supreme Court ruled against both arguments by a narrow 5 to 4 decision.

I often wonder if those who favour jury nullification aren’t working toward the tyranny and despotism they so much decry. The problem is that there is supposed to be some form of consistency and predictability to justice, not the arbitrary chance that a jury will acquit (or convict) based upon its whims.

The forum for fighting unjust laws is the legislature, not the courts. I feel sorry for those who cannot understand that the courts only interpret and apply laws, not make them.

Sure I am a dumb animal.

It is my opinion that the concept of the Second Amendment has been taken out of context and has gone far from what the Founding Fathers originally intended, which I believe was a military system like that of Switzerland where there is a small regular army (professional soldiers) and the universal militia (citizen soldiers, amateur soldiers, part time soldiers, etc.). Proof for this is in the debates and the text of the Constitution where the Federal government has its army and the states the militia. Additionally, there was a great deal of discussion of the evils of a standing army during the debates. Unfortunately, this has been lost in most of the current debates, or the Second Amendment would truly be embarrassing. How many people wish to argue that a Swiss style militia should replace the system we have now of a large standing military?

So, I am an extreme collective rights dog in that I believe there is nothing in the Second Amendment which precludes the banning of individual firearms if the ownership has no basis to an actual Swiss style system. Even in a Swiss style system, private firearms ownership could be strictly regulated if there is no legitimate connection to militia service.

The historical arguments are smoke screens as most people did not own firearms. I think that Michael Bellesisles made some good points in his book which are backed up by Historical facts. The basic one of these being that firearms were luxuries in the preindustrial revolution times (that is standard precision parts). Additionally, there are many instances where firearms at the time of the revolution were non-existent and people trained with sticks.

For the most part, people who lived on the frontier lived peaceful farming existences and didn't really need guns. Well, Didn't they hunt for food as people have done through the ages? That's rubbish. Hunting was the right of the nobility, not the common person. The Commoner has always relied on farming to supply food. In fact, there is a difference between hunting and farming societies in that hunters are nomads and farmers are settled. But the average American has this myth of the rugged, individualist frontiersman which couldn't be further from the truth.  Most of them would have starved to death had that have been the truth.

As for armed self-defence explain away the Deerfield Massacre (1704) , The Chenoweth Massacre (1789), The 1752 Raid on Pickawillany, just to name a few. The farming settlers were pretty much unarmed. Even Daniel Shays who was a Revolutionary War vet had to raid the arsenal at Springfield to arm his band during his ill-fated rebellion.

So, I don't really care for this "recent scholarship".  As any good lawyer knows, stare decisis keeps the collective rights as the "correct" version of the doctrine relating to the Second Amendment, which means I am right and you are wrong.   Any "new" or "recent" scholarship is so much bumpf and, as such only, good for picking up my poop from the street.  Short of a good policy reason leading to implementation of an individual rights theory becoming the legal doctrine, it is as valid as a geocentric theory of the universe--which of course was once commonly accepted by experts.

One Jurist on my side is Sam Alito!  

So keep pushing NRA and other RKBA Morons (you don't even understand what that really means), I am betting on you to bring about the gun ban.