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December 15, 2024
Reviewing basic demographics of home-confinement recipients of Prez Biden's mass commutation
This new USA Today piece, headlined "Who was pardoned in Biden's clemency? Data breakdown of demographics, ages," reports on some general characteristics of the 1499 persons serving time on home confinement who received commutations from Prez Biden last week. Here are some of the details:
An analysis of data collected by USA TODAY from the Bureau of Prisons showed the demographic split behind the numbers. Among the 1,499 whose sentences were commuted, 1,217 were identified as male and 282 as female.
About 61% of those were white, 37% Black, 1.8% Asian and 0.5% American Indian. Overall, 57% of people in prisons are white, 39% Black, 1.5% Asian and 2.9% American Indian....
The ages of those granted clemency ranged from 25 to 89, with a median age of 51. Many were nearing the end of their sentences; half had a year or less remaining before their projected release.
December 15, 2024 at 10:36 PM | Permalink
Comments
It is a fitting end to this awful presidency that Biden released a judge who over-incarcerated juveniles for monetary gain. Of course, Doug thinks that those juveniles had no self-defense rights while incarcerated even though the sentence was completely illegitimate. Yay statism.
Posted by: federalist | Dec 16, 2024 10:45:46 AM
federalist: we've been through your SD feelings before, and I'm still waiting for you to cite a case or write up rigorously your feelings that some prisoners have special SD rights. Is that forthcoming from any of your personas?
Also, it was the Trump Administration who "released" Michael Conahan from federal prison into home confinement in June 2020.
Posted by: Doug B | Dec 16, 2024 12:22:49 PM
What are my personas? Other than MAGA, which I didn't realize was someone else's name. Just wanted to troll the Trump-haters a little, lol. If you can search comments, then search "touche".
And as for the lame whataboutism with Trump, how is this commutation remotely defensible? You, of all people, should be screaming about this, as it makes other pardons/commutations less likely.
Finally, when a person is incarcerated by a judge bribed to incarcerate such person, either the person is released forthwith, or that person has self-help rights.
Posted by: federalist | Dec 16, 2024 1:01:08 PM
My sleuthing suggests you have used at least three other names in the past, federalist, and I have a suspicion about a fourth given your mendacious history. But since you've never been honest on this front, I am not expecting candor from you now.
The problem with a blanket clemency based on a big category --- in this case those released from prison to home confinement by the Trump Admin in 2020 --- is that there are always going to be some "least deserving" person in the bunch. I do think this makes a blanket clemency for all those on federal death row and for the entire Jan 6 cohort perhaps a bit less likely, but that does not bother me. I am also now seeing even more calls for creation of an independent body to make clemency recommendations, which something I have long supported.
Finally, I'm still waiting for you to cite a case or write up rigorously your feelings that some prisoners have special SD rights. Is that forthcoming from whatever personas you now cop to?
Posted by: Doug B | Dec 16, 2024 1:15:36 PM
Did I ever deny your accusations? You cannot call me mendacious without stretching the meaning of the word.
Pretty simple in this case. The adjudications/sentences tainted by bribery are void.
Posted by: federalist | Dec 16, 2024 1:34:38 PM
This is already tiresome, as it so often is because you have not yet cited a case or yet written up rigorously your feelings that some prisoners have special SD rights. (Calling convictions void is a distinct matter.)
Posted by: Doug B | Dec 16, 2024 1:47:10 PM
Your view is that people incarcerated as a result of bribery just have to take it until the government deigns to correct it. I have a different view.
Posted by: federalist | Dec 16, 2024 1:51:44 PM
This discourse where you deceptively represent another's position is just one reason why the label "mendacious" fits, federalist. My view is based in a commitment to the rule of law to remedy legal error (as well as advocating for legal reforms to provide ever more law-based means to do so). Your accounting of the "feelings of federalist" remains opaque (and deceptive) because you have not yet cited a case nor yet written up rigorously your feelings that some prisoners have special SD rights.
For clarity and candor, you should explain that you have (opaque) feelings that are not reflected in the law (and that nobody other than you can understand). And you should stick to articulating your views rather than deceptively misrepresenting others'.
Posted by: Doug B | Dec 16, 2024 2:08:27 PM
Doug, I provided a very simple analysis of why there is a constitutional right to self-defense. You may reject it, but the logic is airtight. Your view regarding the instant issue rests upon the idea that a judgment procured by bribery is somehow entitled to any effect, a very dubious proposition, it seems to me. But hey, statism is sexy.
Posted by: federalist | Dec 16, 2024 3:06:40 PM
If I recall correctly, federalist, your "very simple analysis [asserting] a constitutional right to self-defense" is based on the Second Amendment. So you contend some (unclear) set of prisoners have full 2A rights while others in jail/prison do not? Who are they exactly, and do their 2A rights include the textual right to "keep and bear arms" in their homes (cells)? And what about those held in pre-trial custody prior to any conviction? To call this "logic" "airtight" --- or clear to anyone other than your various personas --- is to misunderstand those terms.
Moreover, how even well-established prisoner rights intersect with faultly convictions --- whether by bribery or mistake or other constitutional/statutory error --- does not lend itself to "simple analysis" (eg, is it enough for the prisoner to subjectively "know" his conviction is faulty or is there some objective standard?). Your various ramblings suggest you seem to have a lot of (opaque and unclear) feelings that are not reflected in actual law (and that nobody other than you can readily follow or understand). That is why I long ago encouraged you to do a rigorous write up if you think you are articulating more than just your feelings. And the wait continues.
Posted by: Doug B | Dec 16, 2024 3:40:42 PM
There is a difference between void and voidable.
In my job, I regularly receive pleadings from inmates who think their conviction is the result of some improper state conduct. Most of the time, those pleadings are without merit. But if wrongfully imprisoned people have some self-defense right (and the government bears the burden of proof of showing that they are not acting in self-defense), then every time that they try to escape from their wrongful confinement and injure their "kidnappers" in the process, I would have to prove that their original conviction was lawful. I am sure that juries would love having to rehash the original case every time that some prosecutor alleged assault on a corrections officer.
Posted by: tmm | Dec 16, 2024 3:45:56 PM
Please explain how a judgment procured with bribery is binding on a free citizen. The answer is simple: power. The government has the guns, and you don't. That's just a statement of fact. And let's not kid ourselves that this is a result that flows from "the law." The incarceration was not just unlawful, but the result of a complete disregard for law. And the person subject to that simply has to wait . . . . and while subject to this state of affairs can be punished for "disrespecting guards" or can be punished for what would be lawful self-defense on the outside.
As soon as the warden of whatever juvenile detention center found out about the bribery, it was incumbent upon him or her to release the juvenile.
The statist answer, of course, is that the juveniles just had to sit there incarcerated until the government deigned to release them. Easy for you guys to just say, "tough noogies." But society has absolutely no right to expect that they sit there and take it.
I would hazard to guess that if anyone that you loved were subject to this, your tune would be a whole lot different.
How can a judgment procured by bribery take away someone's rights under a constitutional system that, you know, grants the right of due process of law.
Posted by: federalist | Dec 17, 2024 9:12:30 AM
Again, conflation and rambling, federalist, is not a rigorous account of your (legal?) claims. Are we talking now only about bribery-tainted convictions or all faulty convictions? Do actually factually innocent defendants --- of which we know there are thousands, if not tens of thousands in prisons and jails --- have to "sit there and take it," but mass murderers who believe (like you) that DOJ is corrupt get to resort to self help?
You are discussing your moral feelings, as is your tendency, and I get the passion. Indeed, I get lots of emails and letters from incarcerated persons and their families highlighting all sort of "due process" faults in the system that they credibly say impacted their case. That's why I want to see if you can bring any analytical rigor to your feelings to guide the many, many locked up individuals who have viable claims the system is wronging them and denying them due process in myriad ways. (Eg, Arguably every conviction based on cooperator testimony involves a form of "bribery" as cooperators are often paid off, at least functionally, with money and/or time off.)
Here you give away the game when you say "As soon as the warden of whatever juvenile detention center found out about the bribery..." So there are no legal SD rights for the wronged juveniles until "whatever" person finds out about the corruption? What's the legal basis for that assertion? We see, yet again, that you are not making a legal argument, but a moral one based on your feelings, and it is not especially rigorous at that. I am still awaiting answers on your supposed "airtight" 2A logic.
If you try to write this up in a rigorous way (with law, if you think you are making legal arguments), I will be eager to engage further. But since you cannot even answer the most basic questions about what you call "logic," I will move one.
Posted by: Doug B | Dec 17, 2024 11:39:34 AM
As the case law notes, the 2A protects the ability to engage in self-defense. Were there no underlying right to self-defense (i.e., because what self-defense rights there are are granted by state) means that a state could render the 2A meaningless. That obviously doesn't work from a logic standpoint since it axiomatic that states can't go against the Constitution. Not hard.
Like I said, your tune would be a lot different if a member of your family was victimized this way. Your idea is that the law demands that those juveniles stay in jail until the government deigns to let them go is not a system of law, but a system of power. Just acknowledge that. No person shall be deprived of life, liberty or property without due process of law (going off memory--and the 14th Amendment is similar). Note the "shall"--is that just aspirational? Do people not have a right to end the effect of a judgment obtained through bribery? Maybe they don't, but the words on the page support my view of the world--there's no exceptions to "shall" in the document.
Posted by: federalist | Dec 17, 2024 12:05:50 PM
Still more conflation and rambling, federalist. Let's try to focus just on your prisoner SD claim that got this started. Specifically, do you claim prisoners --- all? some? innocent ones? ones who didn't get due process? --- have a right to "keep and bear arms" in their cells in keeping with the text of the 2A?
Posted by: Doug B | Dec 17, 2024 3:29:53 PM
Re: 2A, clearly not. Government has power to ban guns from its property.
But SD rights are clearly truncated in the incarceration context. Where there is a prison fight, they generally don't care who attacked whom first. Both get punished. That is unacceptable when someone is in jail because judge got bribed.
I guess "shall" doesn't really mean shall. Just own it. But it seems to me that a person who is incarcerated as a result of bribery should have the full panoply of 1A rights and right to SD. This is why when something like this is found out, it has to be fixed ASAP. I am reminded of a story from years and years ago. Woman got her baby taken by DCFS because urine screen when she delivered showed minute amounts of opiates, well below the generally accepted "positive" test threshold. Well, DCFS figured out that they were all wet, and agreed that the kid should be returned. But the woman had to wait to get her kid back because, supposedly, a court had to say so. Hmmm. So the woman had to have her parental rights interfered with until the court ruled--nope, the DCFS trolls should have just returned the baby and faced the wrath of the judge. They chose their own interests over a citizen's. That behavior is unacceptable in a free society. Same here. A judgment procured by bribery is void. It is incumbent on the government to fix it forthwith. Unless, of course, you think that "shall" is aspirational.
Posted by: federalist | Dec 17, 2024 4:54:07 PM
Still more conflation and rambling, federalist. Let's stick to trying to make sense of your "airtight" "logic" about SD and 2A. You seem to be stating incarcerated persons have NO 2A rights to "keep and bear arms" while behind bars --- even if innocent or held pretrial before adjudication of guilt. But if SD rights come from the 2A, as you assert, I struggle to see the "logic" of claiming prisoners lack the textual rights the 2A expressly provides, but still have a constitutional SD right you feel is (hidden in) the 2A. I see no logic here, just feelings (and I'm even more puzzled by your "logic" suggesting some guilty prisoners have unique constitutional SD rights that factually innocent prisoners do not).
As to your feelings, I surmise you feel it "it is incumbent on the government to fix" its errors. On this front, I agree. That's why you should join those of us opposing govt immunities and appeal waivers and habeas restrictions and all sorts of other tools used to restrict/preclude legal means to fix govt errors in the CJ system, rather than just pontificating about what you feel is "unacceptable."
Posted by: Doug B | Dec 17, 2024 5:38:17 PM
There's no constitutional right to have a gun in a jail, school, courtroom etc. What are you talking about?
Posted by: federalist | Dec 18, 2024 9:07:17 AM
I am still just trying to understand your supposed "airtight" self defense "logic," federalist. You claim a constitutional SD right comes from the 2A, but now you state there are no 2A rights in "jail, school, courtroom etc." So are there no constitutional SD rights for anyone in those spaces?
Again, I am just trying to understand your purported "logic" (aka your feelings). (Another curious part is your feeling that some guilty prisoners have more rights in prison than innocent ones.) And this is why I keep awaiting a rigorous write up if you think you are articulating more than just your feelings. And the wait continues.
Posted by: Doug B | Dec 18, 2024 10:18:16 AM
OMG. The 2A does not mean that anyone has the right to carry anywhere/anytime. And the right does not come from the 2A--the 2A is evidence of the right, as (a) the right to bear arms necessarily implies a (pre-existing) right to use them to protect oneself and (b) given the Supreme Court caselaw saying that the right to keep/bear arms protects the right to self-defense, it follows that if self-defense is a right only to the extent the state says so, then the state could completely negate 2A. And, of course, that's not our system--you know, that whole Article VI thingy. This is airtight logic.
As for people in prison, let's stick to the hypo. People incarcerated as a result of a judgment procured by bribery . . . . as a constitutional matter, the judgment is illegal, and how can you say that such a judgment operates to take away someone's rights? Only if you put statist gloss on the Constitution.
Posted by: federalist | Dec 18, 2024 12:01:11 PM
federalist: your "logic" makes no sense because you never tether your claimed right of SD to anything in text of the Constitution --- what provision of the US Constitution provides a SD right? I thought your answer was 2A, but now you say the SD right "does not come from the 2A." So where, then, in the US Constitution does it come from? When prisoners assert rights to pray and to write to reporters, they cite the 1st Amendment; when not getting certain hearings, they cite the 5th/14th amendments; when alleging mistreatment by guards, they cite the 8th Amendment. If a prisoner attacks a guard for ordering him into his cell and wants to claim SD, what provision of the US Constitution would you cite on their behalf for that claim (now that you concede the SD "right does not come from the 2A")?
Can you answer that basic question? Once I hear what text is the basis for the non-textual SD right you claim --- which could be clearer if you ever tried to write this up in a rigorous way --- we can turn to why you feel some (unknown set of) guilty prisoners have that right while you think factually and legally innocent prisoners do not.
Posted by: Doug B | Dec 18, 2024 1:54:37 PM
Doug, where in the constitution do parents have the right to direct the upbringing of their children? The answer, of course, is that it exists. Meyer v. Nebraska. With respect to self-defense, the Court has indicated that the 2A protects the right of SD. Without that right being fundamental (i.e., protected by the Constitution because the states cannot mess with it), the 2A could be undone merely by a state withdrawing whatever rights it has given. So, in the parlance of the courts, one would then say that one has a liberty interest in defending oneself. And that's a species of Due Process.
As for your prisoner hypo, prisoners gotta listen to guards, so I would say that it is akin to having to listen to a cop. With respect to people who are convicted as a result of bribery, then you have to explain how rights can be taken away by a void judgment.
Posted by: federalist | Dec 19, 2024 12:44:27 PM
The Meyer case was expressly about whether the Nebraska law "infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment." So, the answer to your question is that SCOTUS found that right in the 14A.
In turn, are you now asserting that a constitutional SD right is in the liberty/due process clause of the 14th Amendment? If so, in your feelings, does this depend on incorporation of the 2A or is this a free-standing 14A libery right as in Meyer? And does is 14A consitutional SD right allow for a "duty to retreat" requirement or other limits on deadly force or do states on their own get to decide the particulars of a supposed federal constitutional right? (Your supposed "airtight" "logic" raises a lot of legal questions when subject to scrutiny, and we have not yet even turned to your prisoner claims. I'd look to cases for guidance, but you've never cited to any 14A/SD caselaw, and I am not aware of any such caselaw even though self-defense claims are litigated in courts nationwide every day.)
As for "prisoners gotta listen to guards," I assume you are talking about ALL prisonsers --- including pretrial ones, innocent ones and those whose convictions/sentences are consitutionally faulty. If so, I am puzzled (yet again) by what kinds of "special" SD rights you feel exist --- under the 14A? --- for certain guilty prisoners.
This is why I keep urging a rigorous write up if you think you are articulating more than just your (hard-to-follow) feelings. And the wait continues.
Posted by: Doug B | Dec 19, 2024 1:49:47 PM
This is brutal. All I did was add "liberty interest." So is it your position that there is no liberty interest in one's ability to protect oneself from physical harm? Hmmm. And what say you about the fact that the right to bear arms necessarily implies the right to use them. :)
Posted by: federalist | Dec 19, 2024 2:34:49 PM
Yes, federalist, it is brutal, because you cannot answer a question directly after starting a thread asserting a (never recognized) constitutional SD right. So let me ask again: are you asserting that a constitutional SD right is (or is not) in the liberty/due process clause of the 14th Amendment? You previously said that it "does not come from the 2A." So I am just seeking to clarify if you think an SD right comes from the 14A (and also what you think its constitutional parameters are).
I have been clear in stating that SD is a common law and/or statutory right (just like all other traditional criminal law defenses like necessity, duress and insanity). If someone thinks shooting a CEO or stealing money to buy food or consuming marijuana will "protect oneself from physical harm," do you assert that someone can assert a constitutional defense claiming a 14A liberty interest? Again, lots of questions about your ever-evolving claims, and why I keep urging a rigorous write up if you think you are articulating more than just your (hard-to-follow) feelings. And the wait continues.
P.S. if there truly is a constitutionally protected "liberty interest in one's ability to protect oneself from physical harm," there then must be a constitutional right to an abortion in any and every case presenting any risk of physical harm to the pregnant woman, no?
Posted by: Doug B | Dec 19, 2024 3:53:04 PM
I think that self-defense is a fundamental right. I think that because (a) it is so natural that the framers could hardly have thought the need to enshrine it and (b) the right to bear arms presupposes the right to use them (in appropriate circumstances for SD). Moreover, the Supreme Court noted that the 2A protects the right to self-defense, which means that under Article VI (as I've explained numerous times), states cannot undercut the the 2A by taking away SD rights, which means, in turn that the Constitution protects this fundamental right. This isn't hard. And I've said the same thing, basically, forever.
You say that SD is either common law or statutory, but that means that you think that a state could abolish it. (That logic thingy.) Your "points" about abortion etc. are just so ridiculous. I am not positing a right to be free from physical harm. I am positing the fundamental right of someone to defend himself from non-privileged violence. Do you really think that the Constitution does not protect the right to self-defense? So let's say a state passed a statute that said: "The state has a monopoly on the use of force against another person. Any person, not specifically authorized by law, who uses any non-trivial force on another person is guilty of [____]." Would that law pass federal constitutional muster?
Posted by: federalist | Dec 19, 2024 9:27:29 PM
The 2A is evidence that there is a fundamental right to self-defense, the contours of which right aren't always completely clear (much like 1A). In any event, my position has not evolved. I don't want to get into the silly debate about whether the Constitution created rights or wrote down what rights there were. But if you think that self-defense rights are entirely state law, created, then the idea that one can bear arms under the 2A, but not use them for SD logically follows, and that seems hard to justify. Maybe that's why you won't come out and say that a state could bar a father from using force to stop the forcible rape of his 16 year old daughter.
The liberty interest piece is just how the caselaw from a process standpoint has grown up. It doesn't really add much to the analysis in my opinion.
The hypos you posit are silly, as is your niggling nonsense about "protect from physical harm." What is meant by that phrase is obvious from the context.
The Doug miasma.
Posted by: federalist | Dec 20, 2024 9:07:46 AM
As I've asked before and will ask again, federalist, can you cite any cases in the entire history of US law litigating SD as a matter of federal constitutional law? SD gets litigated thousands of times in thousands of state courts, and yet I am not aware of cases in which any defendant has ever successfully argued that any of the many state limits on SD created by the common law and/or statute is subject to some federal constitutional parameters. Why are all these defendants and their lawyers forgoing this constitutional claim? Is it because even you are unable or unwilling to explain in a coherent way where SD rights appear in the text of the Constitution?
You give away the game, but fail to understand that reality, when you say "the contours of [the SD] right aren't always completely clear (much like 1A)." But the contours of the 1A is litigated in so many cases in so many courts as a constitutional right. But SD, to my knowledge, has not been litigated in any cases as a federal constitutional right. Can you coherently explain why?
As I press you, you remain vague and uncertain as to what you are describing. Eg, Is this a 14A liberty right or something else? What are "appropriate circumstances for SD" and does the Constitution speak to who decides this? Is it about "one's ability to protect oneself from physical harm," or about defending from "non-privileged violence"? What is "privileged violence" and is that a matter of constitutional law or state law? Are we just discussing SD or also defense of others (your rape hypo). You keep shape-shifting your claims, which is why I keep urging a rigorous write up if you think you are articulating more than just your (hard-to-follow) feelings. And the wait continues.
You are keen to claim "what is meant by [a] phrase is obvious from the context," but it is not at all obvious what constitutional text you seek to apply nor what you feel its parameters might be. Your feelings may be clear to you, but you cite no aplicable cases, nor even attend to the text of the Constitution. Basically, this is your feelings version of living constitutionalism: disregard text and caselaw --- which "doesn't really add much to the analysis in [your] opinion" --- and just spin out your feeling of what you think the Constution should mean. Fine, try to write it up rigorously so we can try to make snese of your feelings.
Finally, as I see it, a robust applications of the 6A (broad jury trial rights) and 8A (no unusual and cruel punishments) were how the Framers envisioned (and articulated in text) limits on crazy applications of the criminal law. Meanwhile, as you should know, federal law provides that many persons unauthorized by law who simply possess a gun (or ammunition) are guilty of a felony. See 18 USC 922. Courts have widely upheld the constitutionality of broad dispossesion laws.
Posted by: Doug B | Dec 20, 2024 9:32:55 AM
First question is pretty easy--state law has a lot of protection for SD.
Once again, the issue isn't what we call the right to SD, although "liberty interest" seems as good as any. Once again, how do you get around the right to bear arms which must encompass the right to use them.
Posted by: federalist | Dec 20, 2024 9:40:17 AM
And then you can explain how a judgment procured by bribery can operate to take rights away . . . .
Posted by: federalist | Dec 20, 2024 9:40:59 AM
Federalist: the issue IS "what we call the right to SD" as a CONSTITUTIONAL right, and then how it would be applicable and its implications as a matter of CONSTITUTIONAL doctrines and jurisprudence. If this is a "liberty interest" in the 5th/14th Amendments, the next question is what does this liberty interest encompass and how does it limit state restriction on use of force --- is it a constitutional right only to SD or also defense of others and even defense of property; is it absolute or can a state restrict it with, eg, a duty to retreat and "clean hands" limits? Is it dimished in schools and other special places like some other rights? Can "clean hands" limits be very broad -- eg, anyone ever convicted (accused?) of certain crimes or dangerous behaviors loses this "liberty interest" forever? (Also, if SD is a constitutional right under the liberty provision of the 5th/14th Amendments, what about other traditional criminal defenses ranging from necessity to duress, not to mention mens rea and other possible crime definition issues?)
Critical "clean hands" questions connect to your problematic suggestion that the 2A must be about SD rights. If that is true, what of felon/DV MM (and other) categorical dispossesion laws -- eg, I do not think children have 2A rights, but what of constitutional SD rights? In your telling, does the scope of the SD "liberty" right turn entirely/somewhat on the scope of the 2A right --- are constitutionally permissible 2A restrictions also allowed SD restrictions --- or are these constitutionally distinct inquiries? You say the 2A textual right does not apply to any prisoners, and so I still do not see how you think your invented constitutional SD right does. And on and on and on.
I surmise you realize you cannot write this up rigorously and so will never try. Fine. But I am growing tired highlighting the obvious flaws in your "logic." That said, I still would be genuinely interested in reading a serious effort to give your feelings a rigorous, lawyerly explanation. These are interesting and intricate issues.
Posted by: Doug B | Dec 20, 2024 10:18:23 AM
You seem to be looking at a broader point. My points are pretty simple:
(1) SD is a constitutional right in that it cannot be taken away by state legislation. (You lamely concede the point with your references to jury trial and 8A upthread.) So apparently, there is something that insulates a father from prosecution (outside of state law), which has to be Con law, and the only jurisprudential bucket you can put that in is that the dad has a liberty interest.
(2) A judgment based on bribery cannot operate to deprive someone of a constitutional right, as it is void.
(3) The 2A clearly evidences a right to SD, as the right to bear arms is essentially meaningless without it encompassing the right to defend oneself.
(4) Of course, there are restrictions on the use of force against others.
Posted by: federalist | Dec 20, 2024 2:00:34 PM
This is a useful accounting of your feelings, federalist. Can you cite any law from anywhere to support what you assert in point (1)?
Is it you claim that a father has a constitutional right (and even complete constitutional immunity from prosecution) to kill a teenage boy that he suspects is sleeping with his teenage daughter? You say in (4) "there are restrictions on the use of force against others," but are all the parameters of SD also a matter of constitutional law (as your point (1) would entail)?
I am not making a broader point, but rather flagging all the problems I see in your SD claims. You started this thread by noting that I do not embrace your (confusing and unclear) SD feelings, and I am just noting all the problems I see in your SD feelings.
Posted by: Doug B | Dec 20, 2024 4:37:17 PM
My hypo was a father catching someone raping his 16 year old daughter. I believe I've explained the basis for point 1. So here goes again.
We live in a federal republic. Under the Constitution, the Constitution is the supreme law of the land. Ok, so Supreme Court has stated "The
Court has held that “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense." Ok, so there must be some federal constitutional right here because a state that doesn't like the 2A could render is nugatory simply by terminating any right to self-defense. Well, that conflicts with that whole Supremacy Clause thingy. And then there's the problem that the drafters of the Constitution can't be presumed to have created a right to bear arms without encompassing the right to use them.
With regard to the liberty interest, well, Doug, you could not bear to just come out and say that a state could completely withdraw the right to self-defense. And that is central to your argument--if a state cannot completely withdraw SD rights, then the federal Constitution must have some residual SD rights embedded in it.
And you still haven't addressed the point of a void judgment taking away rights.
Posted by: federalist | Dec 20, 2024 6:30:27 PM
federalist: I've noted gaps and problematic implications in your “logic.” Here's more: SCOTUS calls SD a "central component" of the 2A, not the only component. In turn, the textual rights of 2A would still have force/application even if a state sought to entirely do away with SD. (Moreover, SCOTUS cases on 2A are only about the right to keep and bear arms, notabout a right to kill people with firearms.)
As I said in a prior thread, I believe due process would require allowing a defendant to present to a jury in a criminal trial facts that would support a necessity/SD justification defense. But, in dicta, Justice Thomas in the Oakland Cannabis Buyers Club throws shade on that idea that there may be constitutional grounds for traditional common-law defenses.
As for any "embedded" constitutional SD right, the show stopper as a matter of actual law is that you cannot point to criminal cases in US law engaging with SD as a federal constitutional right. That’s the ball game as a matter of actual legal doctrine and practice. Your "embedded" rights claim, beyond not being recognized by courts, also provides no accounting of the purported reach/limits to that constitutional right. Does your hypotherical constitutional right only apply to a dad who is catching a violent rape or also a statutory rape? What if dad is mistaken about consent? How about chasing/killing the rapist an hour later based on fear he'd return? How about if it's a purse snatcher and a stranger using deadly force in defense of property? How about the Menendez brothers, do they have a federal constitutional claim to assert? And do we look exclusively to state law resolve these (federal constitutional?) issues or are they all a basis for federal jurisdiction based on your asserted constitutional right? Again, we have no caselaw working this through because the law has never engaged SD issues as matters of federal constitutional rights. Rather, SD is treated like common law/statutory defenses to criminal prosecutions, just like necessity, duress and insanity.
I know all this logic and law does not shake your feelings, federalist. But, because you provide no answers to the many implications of your extra-textual constitutional contentions, I cannot endorse your novel claims. And neither have any courts (to my knowledge). Of course, lots of law professors write up novel ideas that lack firm grounding in existing law. That's why I will keep urging you to seek to do so if you want to try to convince people of your feelings that some prisoners sometimes have a unique constitutional right to attack guards.
Posted by: Doug B | Dec 20, 2024 10:40:59 PM
Also, for the record, federalist, if I was trying to make an argument for a federal constitutional SD right, I think the 9A provides a stronger textual basis than the Due Process Clauses. And even if one were to advance the idea that SD is a federal constitutional right protected by the 9A, one would still need to account for the federal constitutional status of myriad state SD limits (eg, retreat and fault rules).
Finally, you have seemingly acknowledged that all prisoners lack 2A gun rights even if wrongly convicted and/or unlawfully incarcerated. If you believe all prisoners (even the wrongly incarcerated) can be denied express constitutional gun rights, I struggle to understand the nature and application of your contentions that some (unclear) set of prisoners have special SD rights.
Posted by: Doug B | Dec 21, 2024 9:56:59 AM
