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1. The basis for the Second Amendment is the right of we the people to act in self-defense

There is a historical basis to assert that individual right to self-defense as the basis of the Second Amendment.  District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 2805-06, 2811 (2008).  See generally David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. REV. 1359.1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND Appendix 310 (St. George Tucker, ed. 1803).  In the interest of completeness, A Heller dissent expressed the concern that Tucker was not consistent and in writings circa 1790 had stressed the militia aspect. 128 S. Ct. at 2839 n. 32 (Stevens, J., dissenting).  The dissent was misled by an article that set forth Tucker’s 1790 discussion of Congressional militia powers (predictably mentioning the Amendment only in that context), and omitted mention of his 1790 discussion of the Second Amendment, which was entirely consistent with his 1803 text. See David T. Hardy, The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, 103 NORTHWESTERN U. L. REV. 1527, 1533-34 (2009).  Tucker’s interpretation has great weight since he was a pre-eminent teacher of law, who attended the Annapolis Convention, and whose brother served in the First Congress; his Blackstone was, for a quarter of a century, the treatise most often cited by this Court. WILLIAM BRYSON, LEGAL EDUCATION IN VIRGINIA 670, 682 (1982).
 
Historical surveys of the Second Amendment often trace its roots, at least in part, through the English Bill of Rights of 1689, WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 126 (1829) (In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, ‘suitable to their conditions, and as allowed by law.’), which declared that subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.  3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1891 (1833).  That provision grew out of friction over the English Crown’s efforts to use loyal militias to control and disarm dissidents and enhance the Crown’s standing army, among other things, prior to the Glorious Revolution that supplanted King James II in favor of William and Mary.  JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 115–16 (1994)
 
Writing in 1825, William Rawle saw the militia clause and the right to arms clauses as separate guarantees, one being the corollary of the other. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125 (2d ed. 1829). Late in the century, Thomas Cooley argued, on pragmatic grounds, that the right to arms would be meaningless if confined to militia duty. THOMAS COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 298-99 (3d ed. 1898).  Rawle was a friend of Washington, Franklin, and other members of the Constitutional Convention; he served in the Pennsylvania legislature when it ratified the Bill of Rights.  ELIZABETH KELLY BAUER, COMMENTATORS ON THE CONSTITUTION 1790-1960, at 61 (1965). Justice Dean Thomas Cooley has been called the most influential legal author of his period, and his constitutional treatise has been described as “the most influential lawbook ever published.” David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. REV. 1359, 1462.
 
This brief history of the Second Amendment  is necessary to understand any law which prohibits possess of a gun.  New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).  The case concerned the constitutionality of the 1911 Sullivan Act, a New York State law requiring applicants for a license to carry a concealed pistol on their person to show "proper cause", or a special need distinguishable from the general public, in their application. In a 6–3 decision, the majority ruled that New York's law was unconstitutional, and ruled that the ability to carry a pistol in public was a constitutional right under the Second Amendment. The majority ruled that states are allowed to enforce "shall-issue" permitting, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, but that "may-issue" systems that use "arbitrary" evaluations of need made by local authorities are unconstitutional.
 
In reaching this conclusion in Bruen, Justice Thomas adopted a “text and history” approach to constitutional rights that may prove to be momentous, not only for the Second Amendment but for other rights as well.  The majority opinion, authored by Justice Clarence Thomas, began by addressing the proper standard for evaluating Second Amendment challenges to firearm regulations and rejected the two-step framework that combines history with means-end scrutiny.  Slip Opinion at 8.   In the majority’s view, the two-step approach was inconsistent with Heller, which focused on text and history and did not invoke any means-end test such as strict or intermediate scrutiny.  Id. at 13.  As such, the Court concluded that the standard for applying the Second Amendment is rooted solely in text and history, stating the test as follows:
 
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.  Id. at 15 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961))
 
Thomas then looked to the history of regulating the right to arms to see if there was any requirement similar to New York’s for carrying outside the home. Apart from some statutes he characterized as “outliers,” Thomas concluded that this type of regulation was not found in the relevant history and therefore it infringed on the right.
 

1. Felons possessing firearms

 

1. Historical evidence for non-violent felons to be allowed to possess firearms as part of “we the people.”

 
The Third Circuit upheld the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since Bruen. Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022), vacated for en banc hearing, https://www2.ca3.uscourts.gov/opinarch/212835p.pdf, starts and concludes:
 
In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.
 
Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....
 
We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.
 
The key to this analysis is the existence of a prior felony conviction.  Prohibiting the possession of a firearm merely because one has been charged is unconstitutional.  US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022) (“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.” https://storage.courtlistener.com/recap/gov.uscourts.txwd.1165328/gov.uscourts.txwd.1165328.82.0.pdf.  This holding was repeated in US v. Stambaugh, No. CR-22-00218-PRW-2 (W.D. Ok. Nov. 14, 2022), https://storage.courtlistener.com/recap/gov.uscourts.okwd.118186/gov.uscourts.okwd.118186.58.0.pdf
Before the Court is Defendant Stolynn Shane Stambaugh’s Motion to Dismiss Count 3 of the Indictment as Unconstitutional (Dkt. 31) and the United States’ Response in Opposition (Dkt. 38). Stambaugh seeks to dismiss Count 3 — Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. § 922(n) — on grounds that § 922(n), as applied to him, violates the Second Amendment to the United States Constitution.  The motion has been briefed and heard. For the reasons explained below, the Court GRANTS Stambaugh’s motion (Dkt. 31)....
 
A historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it.  And because it is the United States’ burden to demonstrate that laws like § 922(n) are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” that failure is fatal.  While the United States needed not find a “historical twin,” surety laws and § 922(n) are simply not “analogous enough to pass constitutional muster,” particularly not in a case like this, where there is nothing in the record to support the United States’ contention that Stambaugh is categorically a “dangerous person” merely because he was indicted for larceny. Accordingly, the Court finds that § 922(n) is unconstitutional as applied to Stambaugh and therefore GRANTS his motion to dismiss Count 3 of the Indictment.
 
The panel opinion in Range was vacated on Jan. 26, 2023, and the Third Circuit reheard the case en banc on February 15 (an audio recording of the en banc argument is available at https://www2.ca3.uscourts.gov/oralargument/audio/21-2835_Rangev.AttyGenUSA_EnBanc.mp3).  In response to questioning at the en banc argument, Range’s counsel proposed an approach whereby “legislatures can use careful rules of thumb to identify inherently dangerous crimes.”  This category would include felonies like murder and arson, but would not include the fraud offense for which Range was convicted.  Several judges pushed Range’s counsel to clarify the distinction between dangerous and non-dangerous offenses, and exchanges with Judges Cheryl Ann Krause and Patty Shwartz show how this standard might work in practice.  Range’s counsel argued that crimes such as embezzlement, money laundering, illegal re-entry into the United States, possession of child pornography, and private computer intrusions into the systems of an entity that could cause massive damage were all inherently non-dangerous, and that individuals convicted of those crimes could not be disarmed and must be able to own and carry firearms immediately upon release from prison.  The answers did potentially leave the door open to a fact-based approach under which an individual convicted of a non-dangerous crime could be disarmed if the facts showed that the crime (even though inherently non-dangerous) was committed in a dangerous way on that particular occasion – for example, if someone embezzled money by threatening the victim with a gun.
 
An interesting point in the oral argument was made Judge Kent Jordan when he raised the possibility of a legislature classifying habitual jaywalking as a felony by increasing the maximum penalty to one year and one day; the government attorney responded that its theory would require deference to the legislature’s determination that a crime represents serious disregard for the law (no matter what that crime is).  That the “felony” category can be easily manipulated by legislatures at the suggestion of prosecutors was mentioned in the dissenting opinion of Judge Stephanos Bibas in Folajtar v. Attorney General of the United States, No. 19-1687 (3d Cir. 2020), https://cases.justia.com/federal/appellate-courts/ca3/19-1687/19-1687-2020-11-24.pdf?ts=1606240806 when he explained that “[t]he category is elastic, unbounded, and manipulable by legislatures and prosecutors. Prosecutors often persuade legislatures to add more crimes to that category to give themselves more plea-bargaining options and leverage.”  Likewise, Judge Patrick Wyrick in U.S. v. Harrison, ( W. Dist. OK. Feb. 3 2023)  https://fingfx.thomsonreuters.com/gfx/legaldocs/zdpxdnqykpx/02032023harrison.pdf wrote about a state government disarming even those who exceed the speed limit:
 
Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one’s lawn a felony so that it could then strip all its newly deemed “felons” of their right to possess a firearm. The label “felony” is simply “too easy for legislatures and prosecutors to manipulate.”
 
In rejecting the argument that all felon disarmament is presumptively constitutional under Heller, Judge Wyrick observed: “What would remain of the Second Amendment if the Court were to accept the United States’ view that a legislature could prohibit the exercise of the right it protects simply by declaring anything or everything a felony?” 
Unanswered by the decision in Range v. Garland is how someone convicted of a felony essentially loses citizenship; that is, conviction of a felony means the person is no longer a part of "the people."  Examining "the Nation’s historical tradition," it is only dangerous and violent people, not all felons, who were historically disallowed to have firearms.  See, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms (2020), https://scholarship.law.uwyo.edu/cgi/viewcontent.cgi?article=1434&context=wlr ; Why can’t Martha Stewart have a gun? (2009) https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2009/03/marshall_final.pdf
 
Judge, now Justice, Amy Coney Barrett made this point quite effectively in Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) in her dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:
 
History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.
 
The Bruen opinion supports the proposition that governments are on shaky constitutional grounds if they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records when repeated reference was made to the petitioners as "law-abiding" individuals.  This position has been endorsed by courts like United States v. Rahimi, that reject the prosecution argument that the Second Amendment only applies to “law abiding, responsible citizens.”  The decision largely endorses Justice Barrett’s dissent in Kanter v. Barr, opining that the Second Amendment right extends initially to all members of the “political community” (quoting Heller) and that the references to “law-abiding,” “responsible,” and “ordinary” citizens in Heller and Bruen “do[] not add an implied gloss that constricts the Second Amendment’s reach.”  Judge Wilson also noted that, as Justice Barrett has observed, “the deprivation [of a right normally] occurs because of state action.”  Finally, the opinion asked whether “speeders” or “[p]olitical nonconformists” could be stripped of their Second Amendment rights entirely under a “law-abiding-only” theory.  United States v. Rahimi, (5th Cir. March 2, 2023), https://www.ca5.uscourts.gov/opinions/pub/21/21-11001-CR2.pdf
 

1. Pardons allow for felons to possess firearms

 
Clearly, as can be seen from a review of the decisions above, the constitutional dimensions of laws regulating felons who possess firearms is in the process of being redefined.  An alternative could be to seek a pardon from the Governor of Wisconsin.  Only felonies are eligible for a pardon.
 
In 1833 in United States v. Wilson, Chief Justice Marshall described the power to pardon as: "... an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed."  32 U.S. (7 Pet.) 150, 160 (1833).   The Wisconsin Legislative Council has stated that “[t]he Wisconsin Governor may pardon a person for his or her convictions in Wisconsin, but cannot pardon a person for federal convictions or convictions from other states. A pardon in Wisconsin restores a person’s civil rights, including the right to hold office, possess firearms, and to hold certain licenses.” Pardons (June 2022) https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2022/courts_and_criminal_law/ib_pardons_kbo_2022_06_06.  Simply put, a pardon is an executive action that mitigates or sets aside the punishment for a crime.  Further, Wisconsin Legislative Council explains that “[a] pardon restores rights but does not protect a person’s record from public view.  Expungement (pursuant to Wis. Stat. § 973.015) seals a person’s court record so that an expunged conviction is removed from the publicly accessible court website (commonly known as “CCAP”) and information about the conviction cannot be obtained from the court. In contrast, a pardon does not remove a person’s conviction from public view on CCAP. Instead, a notation appears on CCAP indicating that a particular conviction was pardoned.”  Id.  Public records would reflect that a Governor's pardon was issued.  In sum, a pardon forgives the ongoing penalty (the "disability") of the conviction of a crime, not the crime itself. Forgiveness does not change the past, but it does enlarge the future.
 
Pardons by the governor are not granted unless all of these conditions are met:
1.     You are seeking a pardon for a Wisconsin felony conviction.
2.     It has been at least five (5) years since you finished any criminal sentence. This means you:
a.     Completed all confinement; and
b.     Com​pleted all supervised release (e.g., probation, parole, or extended supervision).
3.     You do not have any pending criminal cases or charges in any jurisdiction.
4.     You are not currently required to register as a sex offender.
A request for a pardon must use the form found at https://evers.wi.gov/Documents/PardonApp_Aug2021.pdf
These conditions cannot be waived.  A pardon does not mean that a conviction is expunged, erased, vacated, or sealed.  Any application for a pardon is subject to public disclosure under Wisconsin’s Public Records Law, which means they may be released to members of the public if requested. Wis. Stat. §§ 19.31-19.39. 
 
Commutations of sentence have been granted in cases in which a high minimum sentence has been imposed (e.g., life imprisonment) and where such sentence is having an adverse effect on the progress of a defendant who has made substantial rehabilitative improvements; or if the legislature has subsequently reduced the penalty for an offense; or where it seems certain that parole or release to extended supervision would be granted and there are compelling reasons to eliminate delay; or where a disproportionately harsh sentence has been imposed; or in exceptional cases, as a motivational tool towards further exceptional rehabilitation efforts, even though parole is unlikely or unavailable.
 
A pardon was more likely to be granted if an applicant demonstrated that she or he was rehabilitated, and it was necessary in order to pursue education, receive job training, certification, licensing, or employment, or run for public office.  Both the Pardon Advisory Board and the governor are very reluctant to forgive the consequences of a serious criminal conviction simply because "I want to go deer hunting, but cannot possess a gun" or "I want my record cleared."  Typically, to justify the grant of forgiveness, there must be a socially beneficial activity (for example, the granting of a professional license necessary to embark on or to continue in a career, a job promotion, a need to be bonded, or the like) that the conviction impedes.  You cannot receive a pardon if you are required to register as a sex offender under Wis. Stat. § 301.45.
 

This morning at 3 AM I received a frantic phone call stating, “You gotta help me man…the cops are pounding on my door….what should I do?”
If you are ever in this situation, here is what I suggest you do.

1. BE CALM.  TO THE EXTENT POSSIBLE, DO NOT ARGUE OR BE A SMART ASS WITH THE COPS.  While some cops are professional and will deal with that response by you professionally, some will not and simply arrest you on obstructing/resisting charges (or do something worse) and execute the search.

 
   2.  GETTING INTO YOUR HOUSE.
      Cops can search your home only if they have a warrant or your consent. In your absence, the police can      search your home based on the consent of your roommate or a guest if the police reasonably believe that person has the authority to consent.
  3.    DO POLICE HAVE A SEARCH WARRANT?
If law enforcement officers knock on your door, instead of opening the door, ask through the door if they have a search warrant.  A search warrant allows law enforcement officers to enter the place described in the warrant to look for and take items identified in the warrant.  If the answer is no, do not let them into your home and do not answer any questions or say anything other than “I do not want to talk to you.”  Police may say they can get a warrant based on your refusal.  That is false.  Law enforcement officers cannot get a warrant based on your refusal, nor can they punish you for refusing to give consent.
 
REMEMBER: once you give your consent for a police search, they do not need to try to get the court’s permission to do the search.
 
If the officers say that they do have a warrant, ask the officers to slip it under the door (or show it to you through a peephole, a window in your door, or a door that is open only enough to see the warrant). If you feel you must open the door, then step outside, close the door behind you and ask to see the warrant. Make sure the search warrant contains the judge’s name, your name and address, the date, place to be searched, a description of any items being searched for, and the name of the agency that is conducting the search or arrest.  A search warrant that does not have your name on it may still be valid if it gives the correct address and description of the place the officers will be searching.
 
Another type of warrant the police could have is an arrest warrant.  An arrest warrant allows law enforcement officers to take you into custody. An arrest warrant alone does not give law enforcement officers the right to search your home (but they can look in places where you might be hiding and they can take evidence that is in plain sight), and a search warrant alone does not give them the right to arrest you (but they can arrest you if they find enough evidence to justify an arrest).
 
  4.   IMPROPER WARRANTLets say the search warrant you are shown does not contain the information specified above.  What should you do?  Try and deny the cops entry and search?  NO!  Again, in today’s world that may end up with you getting arrested or worse.  Tell the officers that the warrant is not complete or not accurate, and you do not consent to the search, but you should not interfere if the officers decide to do the search even after you have told them they are mistaken.  Ask if you are allowed to watch the search; if you are allowed to, you should. Take notes, including names, badge numbers, which agency each officer is from, where they searched and what they took. If others are present, have them act as witnesses to watch carefully what is happening.
   5.   QUESTIONING YOU BECAUSE POLICE HAVE A WARRANTSimply because police have a search or arrest warrant does not mean you must answer questions from the police. Again, do not be a smart ass, but respectfully decline to answer police questions.  This is true even if the cops say it will go easier on you if you answer questions.  More than likely, at this point, no it will not go easier on you: anything you say can and will be used against you to gain a conviction.
 
Call your Attorney Paul Ksicinski 414-530-5214  as soon as possible.

Like many other Americans, judges believe. based on public statements from certain politicians, that crime is up in their community.  This judges and the public believe violent crime has spiked.  We all saw the campaign rhetoric during midterms, along with often misleading ads to justify harsh sentences or cries for bail reform.  In reality, national crime data is not reliable enough to support justify this belief.  Myths and Realities: Understanding Recent Trends in Violent Crime, https://www.brennancenter.org/our-work/research-reports/myths-and-realities-understanding-recent-trends-violent-crime?ms=gad_crime%20statistics_617000456634_8626214133_143843260761&gclid=CjwKCAiAkrWdBhBkEiwAZ9cdcF4ojY6QZ4_N1uyhQtZCjdzSBAvUfaidVyf7dPmakX2LwBj06isA2hoCXWQQAvD_BwE
 
In fact, the reality is that unduly long prison terms are counterproductive for public safety and contribute to the dynamic of diminishing returns as the prison system has expanded.  Long-Term Sentences: Time to Reconsider the Scale of Punishment, https://www.sentencingproject.org/reports/long-term-sentences-time-to-reconsider-the-scale-of-punishment/; Extreme sentencing, https://www.aclu.org/news/smart-justice/extreme-sentencing
 
The statement that crime is rising is based on data from the newly revised FBI crime statistics collection program.  FBI crime statistics collection program is based on local police departments sending crime data to the FBI.  Unfortunately many police departments do not cooperate and send this data to the FBI.  Nearly 40% of law enforcement agencies around the country did not submit any data in 2021, leaving a massive gap in information sure to be exploited by politicians.  What Can FBI Data Say About Crime in 2021? It’s Too Unreliable to Tell, https://www.themarshallproject.org/2022/06/14/what-did-fbi-data-say-about-crime-in-2021-it-s-too-unreliable-to-tell?utm_source=The+Marshall+Project+Newsletter&utm_campaign=6965cb83f2-EMAIL_CAMPAIGN_2022_12_23_04_22&utm_medium=email&utm_term=0_-6965cb83f2-%5BLIST_EMAIL_ID%5D
 
Broadly, it does not appear that policies associated with criminal justice reform were a significant contributor to recent trends in crime and violence.  Some policymakers and police leaders have been quick to blame rising crime on reforms to pretrial detention laws and practices, arguing that people released from jail under these initiatives were responsible for, or at least contributed to, the increase in violent crime. These arguments gained traction across the country over the last two years, but no evidence has emerged to support them.  Myths and Realities, Iid.

More broadly, some critics have asserted that policies adopted by progressive prosecutors and “blue-state” mayors — such as declining to prosecute certain nonviolent offenses or to seek bail in some cases — contributed to rising crime. But there is no evidence to support these claims. In fact, researchers have shown that the election of progressive prosecutors has not caused crime to increase in their cities. In one working paper, a team of social scientists analyzed crime data from 35 cities where more progressive law enforcement officials entered office, finding no change in serious crime rates relative to other jurisdictions. In some cases, so-called “progressive” policies may in fact enhance public safety. According to one recent study of Suffolk County, Massachusetts, “people who are not prosecuted for misdemeanors are much less likely to find themselves in a courtroom again within two years.” That speaks well of a policy implemented by former Suffolk County District Attorney Rachael Rollins, under which her office declined to prosecute many (but not all) nonviolent misdemeanors, like disorderly conduct and minor drug possession.  Id.
 
Moral of the story is that the public and judges should make decisions based on facts not simply beliefs.

American, not Russian, police have been “directed by local election officials to question voters before letting them deposit their ballots, the deputies guarding the drop boxes underscore the growing schism in this country over the debunked claims that the 2020 election was marred by rampant vote fraud.”   CNN (Nov.3, 2022), https://www.cnn.com/2022/11/03/politics/elections-law-enforcement-conspiracy-theories-invs/index.html
 
The ACLU, https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-questioning reminds you:
Do you have to answer questions asked by law enforcement officers?
No. You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question. It is a good idea to talk to a lawyer before agreeing to answer questions. In general, only a judge can order you to answer questions. 
 
What if I speak to law enforcement officers anyway?Anything you say to a law enforcement officer can be used against you and others. Keep in mind that lying to a government official is a crime but remaining silent until you consult with a lawyer is not. Even if you have already answered some questions, you can refuse to answer other questions until you have a lawyer.
 
What if I am asked to meet with officers for a "counter-terrorism interview"?
You have the right to say that you do not want to be interviewed, to have an attorney present, to set the time and place for the interview, to find out the questions they will ask beforehand, and to answer only the questions you feel comfortable answering. If you are taken into custody for any reason, you have the right to remain silent. No matter what, assume that nothing you say is off the record. And remember that it is a criminal offense to knowingly lie to an officer.
As Nellie King, president of the National Association of Criminal Defense Lawyers explains:
 
The 2022 midterm elections are rapidly approaching, and the stakes are high. The right to vote is essential to democracy yet remains constantly under attack. Voter suppression efforts are on the rise, harkening back to our nation’s long history of racial discrimination.
 
This includes felony disenfranchisement laws, which prohibit individuals with a criminal conviction from voting. These laws, which bar nearly 4.6 million Americans from voting, sprouted from the roots of post-Reconstruction era attempts to strip Black communities of political power.
 
Also on the rise: criminal prosecutions targeting people for:

• voting or trying to vote;
• assisting voters (e.g., handing out water to voters and other line warming activities); or
• seeking to register voters.

These prosecutions rely on arcane provisions of voting law and on the proliferation of recent laws creating election-related crimes or escalating the investigation and prosecution of individuals who have earnestly sought to restore their voting rights or believed their voting rights had previously been restored.
 
We’ve already seen these prosecutions happening in states such as Arizona, Florida, Georgia, Texas, and Wisconsin. States across the country, most recently Virginia and Ohio, are creating “election integrity units” to increase the investigation and prosecution of election-related conduct, despite broad recognition and evidence that voter fraud is too rare to influence national elections. Nonetheless, these efforts are meant to intimidate voters and potential voters. The result is a dampening of voter participation in communities most impacted by the criminal legal system, particularly communities of color.

 

In the story The Pedestrian, Leonard Mead, is a citizen of a television-centered world in 2053.  In the city, sidewalks have fallen into decay. Mead enjoys walking through the city at night, something which no one else does. "In ten years of walking by night or day, for thousands of miles, he had never met another person walking, not one in all that time." On one of his usual walks, he encounters a police car.  Mead tells the car that he is a writer, but the police do not understand, since no one buys books or magazines in the television-dominated society.  The police cannot understand why Mead would be out walking for no reason.  The police decide to take him to the Psychiatric Center for Research on Regressive Tendencies. As the police car passes through his neighborhood, Mead says, "That's my house.", and points to a house warm and bright with all its lights on unlike all other houses. There is no reply.  End of story
Can you believe being picked up by police and being taken to a mental hospital because you were on a nighttime walk?

There are a bunch of Wisconsin laws and/or ordinances which restrict basic human activities of public activities, such as loitering, which is defined as “wandering or strolling around from place to place without any lawful purpose.” The laws grants the police the power to approach anyone on the street who they believed was violating the law and ask what they are doing.  Anyone see a problem with that?  Do the police have the right to define if a citizen is engaged in a lawful purpose? 

As Bill Nye says, before you answer consider this:

America’s constitutional tradition, which protects the rights of people to freedom of movement and association. These guarantees always have included the right to freely use the public ways, parks and other forums of our cities for the lawful purposes of engaging in family activities, and communicating with others about matters both personally important and of public concern. Roberts v. United States Jaycees, 468 U.S. 609 (1984); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  Incidentally, given the times we live in today this freedom of movement includes the right to move across national lines.  The first formal recognition of a right to foreign travel at common law was ch. 42 of the Magna Carta. The power of the King to prevent departures through the writ of Ne Exeat Regno was at one time a potent weapon of the monarchy, but the writ fell into disuse, For the common law background see Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo. L.J. 63, 64-70 (1952). In America, Ne Exeat Regno survived as an equitable writ against absconding debtors. Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va. L. Rev. 853, 868 (1954).  See also, Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47 (1956).

Court decisions have condemned the inherent vagueness of loitering laws as was mentioned above. Thornhill v. Alabama, 310 U.S. 88, 100 (1940); Shuttlesworth, 382 U.S. at 90-91; Palmer v. City of Euclid, 402 U.S. 544, 545 (1971); Papachristou, 405 U.S. at 162-71. The ordinance's vague prohibition on behavior without an apparent purpose fails to provide any standard by which people can measure their conduct. Papachristou, 405 U.S. at 165; Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Similarly, the law provides no guidance to police officers. Kolender v. Lawson, 461 U.S. 352, 360 (1983).  “This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and because it encourages arbitrary and erratic arrests and convictions.“  Papachristou, 405 U.S. at 162.  Such laws are the “garbage pail of the criminal law” and suffer from “procedural laxity which permits `conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.”  Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 631 (1956).  The law is subjectively enforced to permit a law-abiding citizen to comport “to the lifestyle deemed appropriate by the [ ] police and the courts.”  Papachristou, 405 U.S. at 170.
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In Papachristou Justice William Douglas, writing on behalf of the court, ultimately referenced a right that today is not readily known to most Americans: the right to free movement: “[t]he difficulty is that these activities are historically part of the amenities of life as we have known them.   These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence. They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau.” Id. at 164.  Police, therefore, should not be permitted to use mere suspicion of criminal activity to interrupt the daily life of people.  Laws which interfere with an individual’s right to stand or walk on public sidewalks, the “right to freedom of movement” cannot be left to “the whim of any police officer.”  Shuttlesworth, 382 U.S. at 90. 
 

The Preamble to the U.S. Constitution is majestic and powerful:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In the stroke of a few words, the Constitution explains that our “perfect Union” which allows for “Justice” and the “Blessings of Liberty” flow not from our government but from “We the people of the United States.” 

This means we the people of the United States have rights not dependent upon the government.  Rather the power of the government depends on the people.  This was made even more clear in the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

“The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.”  Griswold v. State of Connecticut, 381 U.S. 479, 488-89 (1965)

The Griswold majority decision rested on Fourth and Fifth Amendment grounds, but Justice Goldberg, the Chief Justice and Justice Brennan wrote a concurring opinion stating based squarely on Ninth Amendment principles:
the language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.  Id. at 488.

So we the people have certain fundamental rights which the government is not dependent upon the grant of the government.  Moreover, the government cannot infringe upon those rights.  In the words of the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
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In other words, the government has no power to tell people what to do except in areas specifically granted by we the people in the Constitution.  It is “self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.”  Meachum v. Fano, 427 U.S. 215, 220 (1976), Justices Stevens, Brennan and Marshall, dissenting

Black people are seven times more likely to be wrongfully convicted of a serious offense, including murder, than white people, according to a report released Tuesday by the National Registry of Exonerations.

​In addition, Black people fall victim to police misconduct at a greater rate and experience longer prison times before exoneration, the report found.

https://www.law.umich.edu/.../Race%20Report%20Preview.pdf

This July, the Wisconsin Supreme Court held that recordings against the defendant was constitutional because the defendant’s cellmate had not acted as a government agent in making the recordings.  State v. Arrington, 2022 WI 53 (July 1, 2022), https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=540596  If the facts of this case accurately reflected that holding, I would have no complaint.  Unfortunately, the court choose to omit a glaring fact in its decision.
 
The prosecution’s critical evidence to refute the defendant’s self defense claim to the homicide charge several recordings made by Miller, the defendant’s jail cellmate.  Miller testified that Arrington hold him that when he saw the first person, all he could think about was the stabbing and “just got to shooting.” Miller also testified that Arrington said that one of his bullets hit the decedent because the first person jumped out of the way when he began shooting.
 
The Arrington court began with a truism: that federal courts interpreting U.S. Supreme Court case law have concluded that the admission of jailhouse statements to informants violate a defendant’s Sixth Amendment right to counsel only where 1) the statements were deliberately elicited by the information and 2) were made to a government agent.
 
Miller had not been acting as a government agent because he had no agreement with the government to record Arrington. The court  based that conclusion on the following:

• Miller unilaterally approached detectives about recording Arrington;
• Detectives told Miller that he could record Arrington if he wanted to, rather than directing him to do so;
• The detectives didn’t pay Miller or promise him payment if he recorded Arrington; and
• A previous agreement between the detectives and Miller to record another inmate had nothing to do with Arrington;

“Here, the detectives did not direct or control Miller’s questioning of Arrington….Furthermore, when Miller did choose to record, he was in control of what was recorded … The detectives could not listen into the conversations in real-time. They did not control Miller’s recording or questioning.”
 
However, there was one fact not taken into account by the court in this reasoning.  As stated by the court itself, the recording device Miller used was supplied by law enforcement.  When law enforcement furnishes the very means to record evidence, it is beyond incredible to say law enforcement did not control the recording.  Control the means to make the recording is controlling the recording.
 
Quite simply, the court should have recognized that without law enforcement involvement the recording could not have been made.  They controlled whether the recording could be made at all.  In so doing, law enforcement was involved in obtaining the statement.  By disregarding this fact, the court has invited the police to subvert a defendant’s Sixth Amendment rights by furnishing the tool to end run constitutional requirements.  See, The Bad-Apple Myth of Policing: Violence perpetrated by cops doesn’t simply boil down to individual bad actors—it’s also a systemic, judicial failing,  https://www.theatlantic.com/politics/archive/2019/08/how-courts-judge-police-use-force/594832/

Poster advertising a special issue of a Nazi newspaper about “race defilement” and the Nuremberg Laws,” US Holocaust Memorial Museum.

The book Skeleton of Justice, https://www.goodreads.com/book/show/3767951-skeleton-of-justice was written in 1941 by Roper and Leiser.  Edith Roper was one of the few correspondents to enter a Nazi courtroom so she had a clear insight what was happening in the courts.  As we know today, Nazi courts were a sham as nothing more than a political weapon against Nazi opponents.  Skeleton of Justice makes it clear that the criminal system is not immune from becoming a servant of political forces.
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Nazi statutes were full of legal rules for oppression.  This was a part of Reichsgesetzblatt, ("RGBI") the official edition of statutes.  For instance, the notorious anti-semitic laws in the administration of Nazi justice, Roper and Leiser, p. 134 ff., 141 ff, was the so-called "Law for the protection of German blood and honor" of Sept. 15, 1935.  RGB1 1935 I 1146, deserves a prominent place.  This law created the new criminal offense of race defilement" (Rassenschande). It prohibited all marriages between Jews and Aryans under penalty of imprisonment with hard labor up to fifteen years. The same penalty was provided for extramarital sexual intercourse between members of these two racial groups. Jews were not permitted to employ Aryan female domestic help under 45 years of age, this offense being punishable with imprisonment up to one year and with fines. The same law also punished German Jews for showing the Swastika flag, probably an infrequent offense. Another decree of the same day deprived all German Jews of German citizenship.  RGB1 1935 I 1146.  The connection between the two decrees is obvious; both were manifestations of racial persecution in the field of law.

In his concurring opinion in Dobbs v. Jackson Women’s Health, Justice Clarence Thomas attacked substantive due process, a legal idea that says certain rights can and should be protected by courts, even if not specifically enumerated in the Constitution. The idea of substantive due process allowed abortion to remain protected for nearly 50 years despite not being mentioned in the Constitution or explicitly legalized in a federal statute.  “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion, later saying that “we have a duty to ‘correct the error’ established in those precedents.”  These cases, like Roe, cases represent fundamental parts of American life that many take for granted. Griswold v. Connecticut established that adults have the right to use contraceptives, Lawrence v. Texas established that it is illegal to punish people for homosexual activity, and Obergefell v. Hodges legalized same-sex marriage on a national level. 

Unmentioned by Thomas was Loving v Virginia which found that substantive due process protected the right of different races to marry.  Thomas’ decision to exclude a case that directly benefits him (Thomas is married to Ginni Thomas, a white woman) demonstrates Thomas is not really concerned about legal process but more in obtaining results that advance his reactionary agenda of original interpretation of the Constituion.

As pointed out by Whoopi Goldberg on the TV show The View: “You better hope that they don't come for you, Clarence, and say you should not be married to your wife, who happens to be white, because they will move back…..And you better hope that nobody says, you know, well, you're not in the Constitution. You're back to being a quarter of a person."