Wednesday, June 27, 2012

You’re in court and the Judge is a large marsupial

Why because you have been charged with a crime.

Let's make this fun, you were charged with possession of a controlled substance: Motor Oil.
The law you were charged with states:
a person is guilty of Criminal Possession of a Controlled Substance in the Third Degree when that person knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half [1/2] ounce or more.
I'll add in the narcotic drugs for purpose of this act (and example) are opium, morphine, heroin, and Oxycontin, which is found in the definition section that I just made up for this example.
But the controlled substance you are found in possession is pure motor oil: no weird summertime blend that just happens to contain any of the mentioned narcotics.
Where in the words of the quoted statute are the words "motor oil"?
Nowhere, right.
My point exactly.
But the prosecutor is arguing that motor oil is controlled since there are taxes on it, it is only sold in filling stations, and has been rationed in the past. The words "containing a narcotic drug and said preparations, compounds, mixtures or substances" don't really matter since this is about controlled substances, which motor oil surely is. She even brings in loads of legislative histories dealing with the rationing of motor oil, which in her opinion proves beyind a reasonable doubt that motor oil is a controlled substance. And she has popular opinion on her side to boot.
There is the new scholarship which proves motor oil is a controlled substance.
So, Nearly everybody believes motor oil is a controlled substance since this is my example and you have to take this as a given, even though it is legally incorrect.
All the case law says that this is ridiculous because the whole wording of the statute needs to be considered. One cannot go outside of the statute, or just use part of the statute and disregard inconvenient language such as "containing a narcotic drug and said preparations, compounds, mixtures or substances". Add in that motor oil and narcotics are two different things. The intent of the legislature writing the controlled substance law didn't consider motor oil, let alone have it around ad arguendo (after all this is my example). Add in that all legal precedent says that controlled substance only applies to narcotics enumerated in my example.
If you think Heller was correctly decided, then you should have no problem with being convicted.
As I like to say:
show me the words "self-defence" in this text:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
or this one:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
You can't, can you.
I see the words "well regulated militia", but zip about self-defence.
Now, if you were charged with a crime and the actual act wasn't covered by the wording in the text, would you expect to be convicted?
Nope, any lawyer would rip holes in the prosecution. Well, except for the second amendment crowd as they would believe it was a controlled substance just because everyone believes it is a controlled substance.
Additionally, you are saying that the law can be anything a judge decides it to be irrespective of the wording or precedent since Heller was correctly decided. Popular opinion counts far more than legal precedent or proper legal method.
Is that what you really want?

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