Analytical Common Sense

Courts and the Great Depression

2013-01-20T13:11:00.002-08:00

When examining the historical events that took place in America between 1920 and the start of World War 2 in 1945, most examine the actions taken by the President and Congress. Few take any interest in examining the significant actions taken by the United States Supreme Court during that era. Most students learn about the stock market crash, the great depression, and FDR’s New Deal. However, teachers mentioning anything about landmark cases such as West Coast Hotel Co. v. Parrish (1937) or Schechter v. U.S. (1935) are uncommon. While the executive branch was busy creating agencies and submitting bills to congress, and while congress was busy creating laws, the U.S. Supreme Court was busy shifting towards “judicial liberalism”[1] while also issuing opinions that forever changed certain aspects of American life.

A complete and thorough historical review of the U.S. Supreme court is not needed to understand the significance many of their rulings had on many Americans way of life at that time and for future Americans. Instead, a brief review starting around 1920 will suffice. The Supreme Court is at the top of the judicial branch of our system of government. Its primary role is to hear arguments of cases and interpret the U.S. Constitution as it applies to each case. The rulings handed down by the Supreme Court become the law of the land and apply to every court below it, both federal and state courts. Prior to the Judiciary act of 1925 the Supreme Court had no discretion in how many cases they would hear each year. Consequently, the court became backed up with so many cases that it took years for some cases to be heard. The Judiciary Act of 1925 gave the Supreme Court discretionary review authority, meaning that the court was allowed to review and vote on which cases it would hear and how many cases it would hear. [2]

The Judiciary Act of 1925 was enacted during Chief Justice William Taft’s rein over the court and was just the start of a long list of changes coming to the court. He has historically been given credit for the modernization of the court in the physical aspects of it and the procedural aspects. The current Supreme Court building in Washington DC was constructed in the 1930’s in accordance with Taft's wishes.

The laissez faire attitude towards economic regulations by the government was held by the Wilson, Harding, Coolidge, and Hoover administrations during the 1920’s and also applied to the Supreme Courts attitude towards interfering with businesses. Throughout the 1920’s, the court struck down nearly every case it felt placed a restriction on business or promoted unions.

Arguably, one of the most significant rulings that affected citizens came in case of Adkins v. Children’s Hospital (1923). In that case, the Supreme Court ruled that “a minimum wage law for women violated the Due Process Clause of the Fifth Amendment because it abridged a citizen's right to freely contract labor.” It further went on to state “The law is especially "arbitrary," because it imposes uniform minimum wages on all women regardless of their individual needs or occupations.”[3]

One of the most significant changes that took place between 1920 and 1945 was the introduction of the selective incorporation doctrine.[4] The 14^th amendment of the U.S. Constitution was ratified in 1868 with the goal of protecting newly freed slaves from federal and state laws that sought to violate their new rights; while also guaranteeing them all the privileges and immunities enjoyed by other citizens of America. The amendment is one of the most controversial in the constitution and as it pertains to this paper the important parts of it are:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Prior to the 1920’s the first ten amendments to the U.S. Constitution were thought only to apply to the federal arena of law and were not applicable to the states and their individual laws. Basically, the 1^st amendments freedom of speech protection only protected the right of free federal speech (like protesting in front of the white house) and not a person’s speech at the state level (protesting in front of the governor’s office). During the 1920’s the court began to adapt the practice of selective incorporation; which meant that the court would over time selectively incorporate each of the first 10 amendments under the protection of the due process clause which did apply to the states. The first landmark case that did this was Gitlow v. New York (1925) which incorporated the first amendment’s protection of free speech under the due process clause and applied it to New York. [5]

The significance of selective incorporation is essentially the idea that some rights are so fundamental to American culture that they must apply equally to everyone in every state. Also, there are some unenumerated rights not mentioned in the Constitution like the right to privacy that should also be protected as fundamental rights. The creation of the idea that there are fundamental rights during the 1920’s is the foundation upon which a great majority of cases heard before the Supreme Court today.

Midway through the 1920’s the court had addressed and made landmark changes and rulings on the topics of free speech, unions, minimum wage laws, and had established that there are certain rights so fundamental to Americans that they should apply equally to everyone and every state. The court isn’t finished though. It continues on to address some other big issues during the 1920’s.

In the case of Carrol v. United States (1925)[6] the court ruled that vehicles may be searched and illegal items seized without a warrant. This ruling stemmed from the problems police was having combating prohibition. Also in the case of Olmstead v. United States (1928)[7] the court dove into the issue of legal wiretapping. In this case the court ruled that the evidence obtained from a wiretap that was placed in the basement of a suspected bootlegger was legal and did not violate any rights protected under the constitution.

During this seemingly prosperous time the court was not without some rulings that would be considered inhumane by today’s standards. In Buck v. Bell (1927)[8] the court upheld a law that allowed for women to be sterilized if the state deemed that it would “prevent the nation from being swamped with incompetence.”

By the time 1930 came around the economy was in a steep decline. President Hoover was desperately trying to find a way to stop the economic downfall. Also, in 1930 Chief Justice Taft died, thus leaving the appointment of his successor up to President Hoover. Chief Justice Charles Hughes was appointed to lead the Supreme Court through the depression. At the time of his appointment it was becoming clear that President Hoover was likely going to lose his bid for reelection. A large portion of America’s citizens had become unemployed and found themselves in dire need of help from someone. In 1932 Franklin Roosevelt was elected and immediately began working with congress. Together the President and Congress passed 15 bills in what came to be known as the first 100 days. Most of the creations that came from the first 100 days placed regulations on institutions in hopes of providing citizens a sense of security. For example the Federal Deposit Insurance Corporation (FDIC) was emplaced to back up all deposits made into banks by civilians. It ensured civilians that even if their banks failed; their money would still be there for them.

At that time the majority on the court was conservative and at first opposed most of FDRs new programs that regulated businesses. However, the courts strict adherence to the conservative economic principals became increasingly more liberal as the depression worsened. Before the court took a more liberal stance on economics it continued to apply its theory of “strict scrutiny”[9] when judging cases that dealt with economic regulations. For example in Panama Refining Co. v. Ryan (1935)[10] congress delegated power to the President to stop shipments of oil that would lead to an excess of a state’s oil quota. The authority of congress to delegate this power came from a provision of the National Industrial Recovery Act. However, the Supreme Court ruled this delegation of power found in the NIRA unconstitutional because it would give the president broad and unchecked powers that are not given to him by the U.S. Constitution.

Similarly, A.L.A. Schechter Poultry Corp. v. United States (1935) challenged Section 3 of the NIRA that authorized the president to approve “codes of unfair competition.” The court held that the approval under section 3 was an unconstitutional delegation of legislative powers to the president because it allowed for the president to create standards and restrictions on trade and industrial activity. The creation of standards and restrictions on trade are legislative powers and cannot be delegated to the president.[11]

The case of United States v. Butler (1935) addressed a part of the Agricultural Adjustment Act that placed a processing tax on agricultural goods. The tax from those goods would be given to farmers so long as they promised to reduce their production. The court held that congresses attempt to regulate the production of agricultural goods unconstitutional because the regulation and control of agriculture is a power left to the states. Also, the court stated that it was “a means to an unconstitutional end”[12] in violation of the 10^th amendment. This ruling essentially dismantled a large portion of the AAA. Furthermore, the court continued to strike down numerous other parts of FDR’s New Deal.

FDR became worried that if the court continued on its current path, it would strike down the Social Security Act and or the Securities Exchange Commission. Therefore, FDR and congress decided that it would be best to find a way to exert more control over the Supreme Court. FDR appointed 50 new federal judges and 6 new Supreme Court justices. This became known as FDRs court-packing plan. FDRs attempt at packing federal courts in hopes of ensuring the survival of New Deal programs was met with disapproval nearly everyone. In 1937, congress rejected his court-packing attempt, thus giving FDR a since of failure. However, soon after his plan failed, the Supreme Court began to change its attitude towards FDR and some of his New Deal programs. All in all, his court-packing plan wasn’t a complete failure.[13]

The partial success of FDRs attempt to exert greater control over the court became evident in the case of West Coast Hotel Co. v. Parrish (1937). In this case the state of Washington created a minimum wage for female workers that was lower than the established state minimum wage for other workers.[14]

The court held the following, “in a 5-to-4 decision, the Court held that the establishment of minimum wages for women was constitutionally legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally "free" in negotiating contracts, since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. This case explicitly overruled the Court's decision in Adkins v. Children's Hospital (1923).”[15]

After 1937 the Supreme Court ruled in favor of every federal regulation law that the New Deal emplaced. The transformation of the courts view on New Deal legislation was so abrupt and quick that it became known as the “judicial revolution of 1937”[16] Consequently, the conservative members of the court began retiring or simply dying off and were replaced by liberal justices.

Most people know about the 1920’s for its prosperity and the 1930’s for the depression, but now both of the time frames may also be known for the significant actions taken by the judicial branch of our government.

[1] Davis, Ronald L. "History of the Supreme Court." Educational Broadcasting Corporation. (accessed November 12, 2011.)

[2] "Landmark Judicial Legislation." Federal Judiciary. (accessed November 15, 2011).

[3] McBride, Alex. "Landmark Cases: Adkins v. Children's Hospital (1923)." Educational Broadcasting Corporation. Dec 2006. (accessed Nov 8, 2011).

[4] (Davis, 2011)

[5] "Law Library - American Law and Legal Information" Gitlow v. New York. JRANK. (accessed November 15, 2011)

[6] (Davis, 2011)

[7] (Davis, 2011)

[8] (Davis, 2011)

[9] (Davis, 2011)

[10] (Davis, 2011)

[11] McBride, Alex. "Landmark Cases: Schechter v. U.S. (1935)." Educational Broadcasting Corporation. Dec 2006. (accessed Nov 16, 2011).

[12] "United States v. Butler," The Oyez Project at IIT Chicago-Kent College of Law, (accessed November 26, 2011)

[13] (Davis, 2011)

[14] “West Coast Hotel Co. v. Parrish.” The Oyez Project at IIT Chicago-Kent College of Law. (accessed November 26, 2011)

[15] (West Coast, 2011)

[16] (Davis, 2011)

A new criminal theory perhaps

2013-01-20T13:09:00.002-08:00

The two theories I have decided to merge are Agnew’s General Strain Theory and Hirschi’s Social Bond Theory. I picked General Strain Theory because it does a good job at discussing some of the things that can trigger the release of a person’s negative emotions which in turn may lead to deviant behavior. I also decided to write about Social Bond Theory because it describes some of the factors that keep people from committing crime. Both of the theories have strengths and weaknesses individually, but when merged they help fill in each other’s gaps. (Agnew, 2011; Hirschi, 2011)

The proposal of Robert Agnew’s General Strain Theory in explaining criminal deviance is based on three concepts. The first concept is that people are not naturally inclined to commit crimes. Rather, their transition towards deviant behavior begins when they experience strain. The second concept is that once strain is present, depending on the severity of the strain, a person becomes victim to their own negative emotions like anger, jealousy, and frustration. Their response to those negative emotions may expedite their transition. The third concept looks at a person’s ability to cope with the strain and negative emotions. If a person has poor coping abilities they tend to become overwhelmed by the strain and the negative emotions they are feeling as a result of strain. Poor coping abilities may cause someone to commit crime in hopes of rectifying their situation. (Agnew, 2011)

General Strain Theory views most humans as being lawful and moral citizens in their society. The average citizen only turns to deviance when they become inflicted with negative emotions brought on by one or more of the three main types of strain. The three types of strain in this theory are fairly broad, and everyone has, at one time or another, experienced one or more of these strains. (Agnew, 2011)

There are a lot of people who have lost their cell phones due to their own carelessness or it was stolen. Anyone who has lost their cell phone has experienced the first type of strain. Agnew plainly describes the strain as a result when individual’s “lose something good” (Agnew, 2011. p. 190). The description Agnew gives comes off as being ambiguous and incomplete. Arguably, the strain of losing something good can be interpreted a certain way by someone and a completely different way by another person. A perfect example would be a drug dealer losing his cocaine. According to this theory he is more apt to commit a deviant act to get his cocaine back. Obviously the problem here is the fact that he was already committing a crime before the strain ever took place. A victim of identity theft has their entire savings wiped out and consequently, due to their desperate need for money they become a prostitute. In this case the theory seems to hold true. The scenarios above appear to be completely different in all but two ways.

The two ways in which they are similar are they both lost something important to them. The word good is not defined by what society approves or disapproves of. What’s considered to be good is based on the individual’s own definition. The second similarity is that their loss triggered negative emotions such as anger, depression, and frustration. In these two similarities the core concept of General Strain theory is found. The presence of strain triggers negative emotions, which makes an individual likelier to commit crime if their coping skills are poor. (Agnew, 2011)

The “receiving of something bad” (Agnew, 2011. p. 190) may also lead to deviance. Similar to the first type of strain, the second type involves an individual being subject to unwanted conditions which triggers negative emotions. Individuals may have been harassed, abused, or sexually assaulted to name a few. Individuals are more likely to become subject to the onset of a variety of negative emotions. They may feel worthless, scared, or angry, and these strong emotions may lead them to commit deviant acts. Furthermore, those acts may be closely related to the emotions the individual felt. An example being, a kid being picked on for years in school triggers serious negative emotions and in reaction he brings a gun to school and kills those who picked on him. (Agnew, 2011)

The third type of strain occurs when an individual “fails to get something they want” (Agnew, 2011. p.191). This type of strain can help explain serious crimes and minor offenses. A good example would be a kid asking his mother to buy a new x-box game that he really wants. She tells him no, and in response to that he steals money from a friend and buys the game. That offense is fairly minor when compared to the situation in which a man wants to have sex with his girl friend but she refuses and in turn he ends up raping her.

Social Bond Theory views individuals as naturally having deviant characteristics from birth; and these characteristics dissipate as a person grows older and develops strong conventional bonds to society. One may engage in criminal behavior as a result of the weakening or absence of these conventional bonds. There are four elements of social bonds and they are attachment, commitment, involvement, and belief. (Hirschi, 2011)

Attachment can be described as a person’s compassion towards others and having a true interest in their in opinions (Hirschi, 2011. p.217). People are subject to the constraints that this bond places upon them. When this attachment becomes weakened or removed a person is no longer bound by the constraints of the bond and are free to commit criminal acts if they want. (Hirschi, 2011) In the commitment element, people strive to attain respectable attributes such as a higher level of education, successful business, or the reputation of being a good person. People give significant amounts of their time, money, and energy to achieve these attributes. If they wish to use unlawful means to reach their goals they must consider the consequences and punishments if they are caught. If a person’s bond to commitment is strong they will not risk losing everything they have worked for by committing unlawful acts. (Hirschi, 2011)

The involvement element states that people are typically too busy engaging in lawful conventional activities and they do not have the time to consider engaging in unlawful activities. (Hirschi, 2011) The belief element refers to people as generally adhering to moral values and laws while also respecting the wishes of others in their society. A person that does not have the same conventional beliefs in their society’s rules and norms are more likely to engage in acts that fit their personal beliefs in what the rules and norms should be. In short, Hirschi’s theory views people as having natural characteristics associated with deviant behavior. For example, individuals are naturally self interested and act in ways to get what they want with little regard to others. As we grow older we are taught to conform to society and our level of conformity is measured based on how strong a person’s bonds are to the four previously mentioned elements. The bonds effectively suppress a person’s natural inclination towards deviant behavior. If one or more of these bonds become weak a person is more likely to engage in deviant behavior because deviant behavior is no longer effectively suppressed. (Hirschi, 2011)

Nearly every crime can be explained by General Strain Theory, given that a person actually experiences strain. The range of crimes it can explain is extensive; from a person killing someone to avenge the murder of their loved one, to stealing milk from the store because a person lost their job and can no longer afford it. However, is appears that this theory best applies to two types of crimes. First, crimes committed impulsively by a person due to the negative emotions brought on by strain. An example would be a person committing battery because the victim was verbally insulting them. The second type of crime would be those committed in order to fulfill a need. For example a person loses their job and can no longer afford to buy a pair of shoes that they need since their current pair is torn up. This produces strain and in order to fulfill their need they decide to steal a pair of shoes, thus committing larceny.

Social Bond Theory best explains crimes or deviant acts committed by younger people as a result of the weakening of a social bond. Such crimes or acts tend to be less serious than those crimes best explained by General Strain. Some examples of the crimes Social Bond Theory best explains are, experimental drug, underage drinking, cheating in school, and vandalism.

These two theories would complement each other nicely if merged. In short, there would be no need to change or modify either theory. Social Bond Theory, by itself, can explain most deviant acts committed by young adults and teenagers. For older adults, in many cases, the weakening of bonds would produce strain which then could lead to crime. Either theory may still individually explain certain crimes committed by older adults, or at least some of the factors that led to that crime. Nevertheless, in situations where a person’s conventional bonds becomes weakened which then specifically produces strain and finally results in the commission of a crime; the explanation as to what caused the person to commit the crime is significantly easier to find than it would have been had only one of the theories been applied.

The best part about merging these two theories is that their explanations on the cause’s crime do not conflict with each other. Instead, they tend to overlap one another or in some cases one theory is merely a factor that led to the commission of a crime explained by the other theory. The main concept of this theory is that a person develops conventional social bonds as a child and the strength of those bonds is primarily influenced by the person’s parents and their parenting skills. In other words, poor parenting skills may lead to the development of weaker bonds compared to the strong bonds that could be formed by good parenting skills. The older the child gets and the weaker the bonds become the likelihood of experiencing strain increases which may then lead to crime. Therefore, to reduce crime the government must focus on improving parenting skills.

The main problems with merging these two theories, under the concept mentioned above, are that people usually do not like it when the government tries to dictate how a child should be raised. Also, this theory does a poor job at offering ways to reduce crime that stem initially from strain and are then committed when their social bonds become weak. For example, a person’s father is murdered thus producing strain which in turn weakens their bond, in regards to the element of belief. He seeks out that person that killed his father and murders him. What policy could be implemented to prevent crimes like this one from occurring?

Both of these theories may individually explain certain crimes or the factors that led to the act, but there is often times a hole, in their explanations of crimes, that they cannot fill. When combined these theories help to fill the hole that cannot be filled by either theory on its own.

Guns dont kill people. WE do

2013-01-20T13:07:00.003-08:00

Summary:

The debate on the legalization of firearms in America is generally viewed as being one side saying firearms promote criminal behavior the other side saying possessing firearms serves to protect and prevent criminal behavior. It is no secret that most American’s get their information from the media and consequently their conclusions and opinions are being influenced by an overly simplistic view of firearms and crime.

Due in large part to the ignorance of the average citizen, proposed solutions for reducing firearm crimes are very broad and sweeping. For example the book mentions “ban all guns”, “allow all teachers to possess guns”. The two main views in reducing gun violence are: 1. reducing the number of guns in circulation. 2. Increasing the cost of illegally possessing firearms. Each view faces problems. First, the fact that there are over 270 million guns in America make any attempts at removing guns from society nearly impossible. Second, there are already numerous state and federal laws regulating who may purchase gun, what type of guns, and who may carry guns. I will now simply list the general points made in this article.

· America has the highest rate of gun ownership in the world

· The majority of those killed by firearms are those whom commit suicide

· The firearm most commonly used to commit crimes are handguns

· Homicides in America were decreasing as the number of guns purchased were increasing

· There are numerous factors other than just gun ownership that play a role in violent crimes

· Most of the legislation regulating firearms was the result of some crime that the media reported extensively on. Also, there are numerous interest groups that flood Washington and state governments with lobbyists in hopes of passing legislation in favor of their cause.

· The regulation of specific handguns led many to modify more powerful and deadly weapons such as shotguns.

· One problem with pushing for the regulation of who may buy a gun is that those who are more likely to commit crimes do not acquire guns lawfully, therefore those most affected by such regulations are those less likely to commit crimes.

· Research how found in some states that outlawed gun ownership by felons, domestic violence offenders, and drug abusers showed a significant drop in suicides and intimate partner homicides.

· Regulations that limit the use of firearms or require proper storage have an adverse effect on those who need to use their gun for self-defense.

· Studies have found that such regulation as mentioned above have not had any effect in reducing accidental deaths.

· A study conducted by the CDC concluded that gun control legislation had no significant impact on violence rates

· Community policing approaches that have been made in dealing with gun problems have been somewhat effective in some areas and non-effective in others.

· Integrated approaches to removing firearms have seen some success and seem to be a step in the right direction

Reflection:

In 2007 the United States Supreme Court, for the first time, analyzed and interpreted the meaning of the 2^nd amendment and identified any rights protected under it. The opinion issued in District of Columbia v. Heller made it clear that the 2^nd amendment guarantees a right to possess a firearm in the home. Finally the debate regarding the control and regulation of firearms had a judicial foundation in which future argument could stem from. However, it’s important to note that the ruling handed down in this case applied only to the federal government and Washington D.C. not the states themselves. Whether or not the rights under the 2^nd amendment were applicable to the states was addressed in 2009 via McDonald v. Chicago. Justice Alito wrote the opinion for the majority and he explained the courts rationale for incorporating the provisions of the 2^nd amendment and applying them to the states under the due process clause of the 14^th amendment. The significance of these two landmark cases is that now there is a fundamental constitutional right to possess a firearm in the home for purposes of self-defense.

The effect these two rulings had on the debates over gun control are greatly significant. However, the court also held that the right to bear arms was not unlimited. Essentially states are still free to regulate who may buy a gun, who may carry a gun in public, what types of guns are allowed to be sold, and where a person may carry a gun. Pertaining to this article, any argument in support of sweeping legislation to remove all guns from circulation is dead. Furthermore, any legislation regulating firearm possession that infringes on an individual’s right to bear arms must have a significant and legitimate state interest in order to be valid. To put it plainly, if a state passes a law that prohibits or regulates any aspect an individual’s right to have a gun it must pass the strict scrutiny test, meaning that the state must show that the law serves a compelling interest. A good example would be prohibiting felons from purchasing a handgun, but prohibiting a law abiding citizen in which the compelling state interest of the law is not geared towards is unconstitutional.

The statistical analysis of crimes involving a firearm is not relevant in firearm regulation, at least for now anyways. In other words even if a city presents empirical evidence that crimes involving firearms have increased 60% since 2009, the state may not prohibit everyone from having a gun. Having that been said the debate over gun control is made even narrower. The rulings have been handed down and it is highly unlikely that the court would not continue is general adherence to stare’ decisis when similar cases are presented.

I felt the need to mention all the above material because it makes some other the issues discussed in the chapter now irrelevant.

Death by cop

2013-01-20T13:07:00.000-08:00

Summary:

There are numerous factors that play a role in the variety of services law enforcement agencies around the country perform:

1. The demands of local communities

2. Political demands

3. Policies and procedures handed down by department leadership

4. The history of the agency itself.

Police officers have made great strides from their historical roots in street policing. Police officers are now subject to numerous law, policies, and procedural guidelines that serve to hold them accountable for their actions while also making it clear what they can and cannot do. This chapter addresses the use of police by police officers and the factors the influence an officer’s decision of whether or not to use force.

Research provides that 99% of police encounters result in no police use of force. Although the research may lead some to write off the realistic threat of violence against police officers, it is still vital that our police do not become complacent. Even though they face a low chance of ever having to use force, the one time that may require them to do so could be deadly if they are not mentally prepared. This chapter specifically mentions the rare occurrence known as suicide by cop, and the lasting effects it has on both the police and the offender.

The majority of this chapter addresses the 5 factors that influence a police officer’s use of force and they are:

1. Local, state, and federal laws

2. Departmental policies

3. The training the officer has had

4. The method of policing within their specific community

5. The personality characteristics of the individual officer

The first factor mentioned in the chapter is the laws of their city, state, and federal laws. In short laws serve to outline what an officer may or may not do , and the tend to be broad. Laws or ordinances at the local level are narrower than those at the state level and state laws for the most part are narrower than federal laws. To be a police officer one certainly does not need to be a lawyer but a good grasp of the law, especially laws that govern their actions, maybe invaluable in the event they are faced with a situation involving the possible use of force.

The next factor deals with policy. It is generally understood that police exercise broad discretion in their decisions whether to write a citation, and sometimes even whether to arrest someone or not. According to the book, policies simply serve to guide officer’s thinking process, whereas procedures serve as a guide to what the best way is in applying policies. Departmental policies and procedures must be created in accordance with the state and federal laws and they must be written as clearly as possible in order to effectively inform and guide the police.

The training each individual officer receives plays a very important role in the decision making process and reaction of police officers. In the heat of the moment officers thinking process maybe clouded and that is when their training comes in. if they have been properly trained them will respond instinctively in accordance with their training.

Departmental practice is the next factor discussed. In short the idea behind this is that some of the policies created by the department that may have been enforced during an officer’s initial training may not be actually practiced in the real world. The book uses the example of a department’s policy requiring the wearing of their hats when stepping out of their vehicle. During the officer’s initial training it was drilled into his head, but when he hit the streets he realized that although the policy is clearly written, it is not practiced by officers.

The last factor is arguably the most influential in police officer’s decision making is the individual’s personality characteristics. Departments need to establish early warning systems that will help to identify those officers who are more inclined to respond aggressively or passively. If departments can better their understandings of their own police officer’s they have a better chance at preventing police abuse among other abuses of authority.

The last half of the chapter addresses the use of deadly and non-deadly force the issues that arise when an officer is killed or a citizen is killed and lastly what a department should do to an officer who uses unauthorized force.

Reflection:

I think most agree that police should be given broad discretionary powers inherent with the nature of the job. The job of a police officer can be stressful enough, but when you include all of the laws, policies, and procedures they must know and are expected to follow in any given situation that stress increases tenfold. Imagine being an officer during a traffic stop. In large part the average traffic stop does not trigger much stress, but what about traffic stops in which you the officer suspect the driver of being under the influence. At that very moment numerous local, state, federal laws are triggered, not to mention the constitutional issues. The officer must at a moment’s notice know what he is allowed to do and what is prohibited by the law at all levels. Furthermore, while adhere to the law he must also act in accordance with departmental policies and procedural guidelines. Obviously the officer must be familiar with a lot of rules that guide his actions and any violation of those rules may jeopardize any potential conviction. As the seriousness of the crime increases so too do the number of laws and rules the officer must adhere to. In my opinion by being a country that places great interest in protecting civilian rights we make the job of police officers very difficult and stressful at times.

In most situations if an officer violates someone’s rights or fails to follow procedure, the worst result is either a failure of conviction or possibly departmental punishments. However, in the situations in which the use of force is at hand the end result very well could be death. Therefore, the laws our legislators create and the policies/procedures departments create must be as clear and concise as possible because any ambiguity in a law may lead to death. Departments must not ignore the 5 factors that influence an officer’s decision making process while creating policy and the government must attempt to understand the possible consequences before passing any law governing the actions of police.

Racial profiling

2013-01-20T13:06:00.002-08:00

Summary of those who say YES:

· Statistics clearly show that blacks commit more crimes than whites and so do Hispanics, but due to media distortion and politically correct speech those who mention these facts are labeled racists. Consequently, many are not fully aware of the magnitude in the differences in crime rates among blacks, whites, and Hispanics.

· When someone does reveal the facts he/she is often faced with the claim that the minorities are disproportionate to what the study claims. However, the author does an amazing job at clearly explaining the methodology and it shows that the studies are not flawed like many think.

· Calculations from the national crime victim survey reports the black rate for interracial robbery was 103 times that of the white rate.

· 30,000 white women were raped by a black male compared to only 5,400 black females raped by white men.

· The authors present numerous reports from the UCR and NCVS and each time the black rate is significantly greater than the white rate.

· The data that comes from the uniform crime report is based off crimes report to police and arrest made. The data from the NCVS is based solely on crimes people say they were victim to.

· The article addresses the counter argument that police have discretion and misuse it, but in reality they do not when it comes to violent crimes.

· The article also addresses the issue of some Hispanics being placed in the white category and how that could lead to misleading results.

· The authors conclude with crime rates that include women. Also they make their main point and that is that racial profiling should be an acceptable law enforcement strategy because, as the stats show, its common sense that blacks commit more crimes than whites and so do Hispanics. It’s just like the scenario of a woman being more fearful of a group of guys than a guy being more fearful of a group of women. It’s just common sense that’s no different than looking at someone’s age or gender.

Summary of those who say NO:

· The opposing authors make two mistakes: First their information is not valid. Second their results and conclusions are misleading and wrong

· The other authors use prevalence rates rather than incidence rates.

· Their use of the NCVS was wrong and thus leading them to the incorrect conclusion that black on white crimes occur more than any other.

· The author of this article explains their mistakes and then shows us the way it is supposed to be done. Furthermore, she concluded that White on White crime occur more often.

· She continues on to discuss the odds of victimization and how rate comparisons can be misleading.

· She concludes that when using crime report data you must focus on all violent crime to make a general claim about a class of people. She plainly states that the NCVS shows us that in fact white people are at greater risk of victimization from other white people. Blacks are over represented in prisons so prison studies can be misleading as well. Simply white people commit crimes against other white people more than the other author’s claims that blacks commit more crimes against whites.

Reflection:

The term “racial profiling” is in itself a phrase that triggers a number of emotions in many Americans. You do not have to be a historical scholar to know that the issue of race and actions against people solely based on race has a significant place in our country’s history. Most American’s do not take the time to study the UCR or NCVS, they develop their opinions and base their arguments on what they have learned from the media. Some may also reach their conclusions about race and crime as a result of a personal experience they had, but the media is America’s primary source of knowledge and information.

According to the U.S. Census Bureau, in 2010 America’s population was 308,745,538. Of that 72.4% were White (223,531,769), 12.4% where Black (38,901,937), Hispanic or Latinos made up 16.3% (50,325,522). Clearly there is a significant difference in population according to race, therefore when attempting to find if one race commits more crimes than other races you must account for the vast differences in their numerical representation in society. Numbers aside, the underlying issue is whether we should allow police to initially focus on nothing more than persons presumed race when conducting inquires.

As I previously mentioned most American’s, including police officers, do not look at the crime reports. Nor do they study the methodology and understand the complexity of the data. If the media reports that 63% of blacks commit armed robbery and only 35% of white people commit robbery, the average citizen is probably going to think “wow black people are more violent and are more likely to rob me”. However, if this made up person were to look more into the issue they would find that the 63% of blacks that committed armed robbery total 24,236,119 compared to the 35% of whites totaling 78,236,119. This made up scenario and numbers show how easily the average person can make false assumptions. Furthermore, we must remember that police officers are also subject to making these false assumptions.

In my opinion our society should never have any policy that is based on race, and that goes from affirmative action to racial profiling. Once we go down that road it will be nearly impossible to return. To my knowledge there is no law enforcement agency in our country that publicly claim they condone racial profiling, but the ignorance of many police officers lead them to assume the media is correct and that blacks do commit more crimes and therefore when they see a black person they naturally scrutinize their actions more so than they would a white person. Of course I am just speaking in generalities. It may very well be true that most crimes are committed by blacks in a specific officer’s beat, but that does not justify racial profiling when there is a crime committed. Let’s say there was a robbery in a officers beat, and this officer racially profiles and while on patrol he sees a black guy walking down the street. Basically the officer is going to say to themself ( I see a black guy-------à blacks commit more crimes than whites--------à without any previous reasonable suspicion the officer then looks for ways to create that suspicion in order to justify stopping the man and searching him--------àthis may very well lead to false accusations and possibly convictions at the very worst. At the very least the officer finds no probable cause for arrest and lets the man go free, but now the black guy may feel harassed, embarrassed, and/or angry. The emotions brought on by his encounter with the police may lead to a profound resentment of police and possibly lead to a future commission of crime.

Police officers must look at other factors than just race, for example in the example above the victim says the offender was black 6’ 170lbs black hooded sweatshirt wearing jeans and white Nike tennis shoes. If the man walking down the street meets any of the above the officer is perfectly justified in stopping the man and doing what he has to in order to determine if that is the offender or not.

I have been fortunate to go on numerous ride alongs with the EPD (much more than the department actually allows, which is only 2 times every so often, maybe even only twice a year I can’t remember) I avoid this obstacle because the officer I rode with is close friend of mine and he simply never turned in my waiver and agreement paperwork. So I would say I have been at least 10 times in the past year and half. If I have learned anything from my experiences it is this:

1. There are many police officers who do in fact racially profile, they just do not mention it aloud when around superiors or other officers in which they are not close with.

2. A significant amount of EPD officers, unless actively searching for an offender, will see someone of minority status and then find the most minor violation in order to justify stopping them (specifically while patrolling) when in fact the real reason the officer stopped them was based on race.

One night we saw a car with 3 black males driving around showplace cinemas on Morgan Avenue. Prior to this stop I had yet to be witness to an arrest. The officer says to me “let’s see if we can’t get an arrest for you tonight” he follows the vehicle until he notices that one of their two license plate lights are out. That was all he needed to justify his stop. Upon doing so he pulls all three black males out and begins asking multiple questions. He then asks if there are any drugs in the car because he saw the passenger move his arm to his side as if to drop something under the seat. The driver says no and at that moment a second officer comes flying up with lights on and he hops out of the car and immediately pats down the first black guy he saw (for weapons naturally). The officer I was with asked if the driver consents to a search of his vehicle. The driver does and the search begins. It appeared to me that the officer was determined to find something that neither of us actually new existed. After about 30min and after finding nothing in the vehicle he says “thank you for your cooperation you’re free to go”. When we get back in his vehicle he looks at me and says “they had something I could tell, but I just couldn’t find it”. In conclusion, yeah they had something, a darker skin color, no more no less.

Some people just look like criminals

2013-01-20T13:05:00.002-08:00

Summary of the YES argument:

· Sheldon developed 3 body types that future researchers adopted in some format or another. Sheldon listed mesomorphs as being athletically built. Endomorphs are overweight. Ectomorphs are underweight to the more extreme side of being skinny.

· Nearly all research on body types being linked to crime have found that mesomorphs or their slight variation depending on the researcher are consistently associated with criminal behavior and groups compared to the other 2 somatotypes.

· After years of studies it was determined that there were some flaws in many of the study’s methodology but the study in 2008 corrected the flaws by using the body mass index approach and the results of that study were consistent with previous conclusions although it found only a slight linkage to criminal behavior and association.

Summary of the NO argument:

· It is crazy to think that a person’s body type by itself has an effect on crime. Rather we must look at any possible third variables that link the two.

· There is no direct casual link between body type and crime

· However, if there is a link it has to be placed in the context of environmental variables

· No study has ever looked and measured all of the important variables that could be related to body types and crime.

· While there may be a link, the third variable is a person realizing there body type and understanding that they have a better chance at being successful in committing a certain crime like the example and robbing a guy.

· The bigger more athletic kid knows his physical size can be used to intimidate and therefore increases his chances of being successful

Reflection:

The question presented is whether or not a person’s body type is CLEARLY linked to criminal behavior. I find it just plain dumb to think that just because a person is built athletically that he is more likely to commit crime than anyone else of a different body type. Certainly those with athletic builds have an advantage in committing certain crimes especially violent physical crimes than those who are really skinny or obese. However, a person’s body type alone is not clearly linked to criminal behavior.

There is no doubt in my mind that to claim this linkage between the two one must also address a third variable otherwise we are claiming that a fat person who loses weight is more prone to committing crime. It seems to suggest that obese people can’t rape someone or point a gun at a bank teller. We must look at what someone would feel the need to rape or the need to steal money from a bank.

Were you born a criminal?

2013-01-20T13:04:00.002-08:00

Adrian Raine says YES: SUMMARY

· Most of the other fields of science have identified certain biological factors as being predictors of crime but criminology seems to still ignore modern findings

· Studies show that identical twins are more likely to commit crime than fraternal twins.

· Some of the factors that may predict the likely hood of a person committing crime are a person’s lacking in psychophysiology, EEG underarousal, cardiovascular underarousal, brain damage, nutrition, hormones, and toxins in the environment.

· Science has discovered risk factors that some individuals may have that make them more likely to commit crimes.

· As a society we need to inform these people and those people must act accordingly knowing their biological risk factors. Furthermore, we must hold them accountable of their actions since they have free will. But is we do not inform them of their risk factors, can we hold them fully accountable since they may not truly have free will?

Jeffrey Rieman says NO: SUMMARY

· Poverty is a source of although we do not know how it causes crime.

· Even though we realize poverty as being a source of crime we do very little to improve the conditions surrounding those people experiencing it.

· Prison creates and releases more criminals than it rehabilitates.

· Once prisoners are released from prison they still face a tough uphill battle to find jobs and gain public acceptance.

· If they are unsuccessful they find easy ways to earn a living by committing crime again.

· America has the highest rate of death by firearm in the world

· Basically, it has been found that treatment programs and therapy early in a child’s life is most effective at reducing crime therefore people are not simply born criminal and will most likely violate laws.

Reflection:

I do not think that criminal behavior is determined biologically. After reading both sides of this debate I do believe that there are certain genes and traits that just happen to be found more in criminals than non-criminals but to say that those genes or traits are linked to criminality is misleading. It seems to me that for one to claim that some biological factors determines criminality that factor would have to only be present in criminals not just more so than not.

In my opinion the best predictor of crime is the environment in which a child is born into and raised. More specifically the child’s relationship with their parents or those entrusted to care for them. The biological factors mostly come in to play when looking at how a child reacts to certain situations rather it is good or bad. There is no doubting that we inherent some personality characteristics similar to one or both of our parents, even those adopted inherit them from their biological parents. For example I get my argumentative side of my personality from my mother without a doubt. So basically what I am saying is that the environment in which we are brought up whether it be hostile and unloving or caring and loving plays a much larger role in determining potential criminality than does how we react to certain situations in life. I may have an argumentative personality naturally but if I was raised not to be like that (which I was not) then I most likely would not be so argumentative.

Does crime benefit us?

2013-01-20T13:03:00.002-08:00

Summary of Arguments

Durkheim says yes:

· Crime is present in all societies of all types.

· We falsely believe that crime has historically decreased but really it has increased everywhere when you consider is rate compared to population growth.

· Crime is normal because it’s impossible to have a society that is without it.

· The level at which the people of society feel an act is harmful to them determines what is criminal and not. For example the book uses robbery compared to bad taste.

· If we consider crime to be a disease then the punishments we give it must be its remedy.

Patrick Monynihan says NO: Summary of Argument

· Durkheim’s argument would seem to suggest that we should approve of crime, but he makes no such statements.

· Durkheim doesn’t seem to believe that there is such a thing as to much crime.

· In general we as a society view many crimes that at one time were considered to be outrageous to now be normal. Furthermore, he thinks that we have redefined many crimes and there are three categories of this redefinition.

· One altruistic two opportunistic and three normalizing

· Altruistic would be the mental health community making former criminal acts a medical issue that can be treated and viewing the offender as being sick rather than criminal.

· Opportunistic addresses the political benefit some may receive from siding with those people with alternate lifestyles that may have been at one time considered wrong.

· Normalizing is our society having experienced so much of a specific crime that we no longer consider is outrageous. Rather it has simply become normal.

· Crime is not beneficial to society because no one benefits from the pain it brings. Furthermore, crime rates will not and have not remand steady; we have simply become more acceptable of certain criminal acts.

Reflection:

I can see certain areas in which crime may be beneficial to society. Without crime there would be far fewer jobs such as lawyers, police, corrections, judges, etc. Also, I believe that our studying of criminals and their crimes have led us to a better understanding of our people as a whole. However, I disagree with the notion that crime is normal. If crime is normal then are not the people who commit those normal criminal acts considered to be normal? I do not believe that a majority of criminals are normal when compared with the rest of society.

I think most would agree that drinking and driving is unlawful and morally wrong and some people are strongly against it and feel those drinking and driving should receive harsh punishments. I wonder though, if a majority of our society feels that drinking and driving is wrong what can be done to stop it? Well for one I suggest that we could place police officers outside of every bar in their city and pull over everyone the feel is under the influence. I think that by doing so there would be a drastic drop in DUI’s. However, the fact is that enforcing laws and preventing crimes are subject to the availability of resources and we simply do not have or receive enough from the government. Also, I am under the impression that a majority of Americans have at one time or another driven their car after drinking and that if everyone who has ever drank and drove were to be arrested, we may not like that. Basically, most of us have done it and gotten away with it but we certainly do not want to be the one that says “hey it’s ok since I have done it” So while it’s not a fully acceptable act, the fact is many of us have done it, and we don’t seem to be so outraged as to do what is necessary to stop it. This scenario applies to many other crimes not just DUI’s.

Death Penalty

2013-01-20T13:02:00.002-08:00

Summary:

· 128 countries have abolished the death penalty while 69 still have it.

· A study showed fewer than 6% of those on death row are actually executed.

· Those in favor of the death penalty tend to support the crime control model

· Those in opposition tend to favor the due process model of crime control

· The author then gives us a historical review of the death penalty in America

· The death penalty came to America by way of Great Britain.

· Favor for the death penalty hovers around 70% historically

· The author then gives us states about how many have been executed and then addresses the issue of why it takes so long to impose the death penalty.

· Interestingly, you are more likely to receive the death penalty if your victim was white. So it’s not really about the race of the offender as it is the race of the victim.

· A sentence to death is disproportionate among minorities and women alike.

· The author then lists 8 possible reasons to as why the use of the death penalty has decreased

· In closing the author mentions that one limitation of the death penalty debate is that policy makers lack a comprehensive body of research about the death penalty and whether or not there are any benefits for the costs.

Reflection:

Personally I am in favor of the death penalty as my team and I successfully debated about in class. I favor it for two main reasons: 1. It serves as a final punishment for those who kill while in prison for life or at least for a long time. Without the death penalty how do we deter and/or punish those who kill while in prison? 2. The lengthy appeals process helps to ensure that someone is not wrongfully convicted. I personally think that life in prison is a harsher punishment when you consider that people are living much longer these days, I could not imagine siting in a cell for 50 years I would probably try to commit suicide anyways.

Unlike the book any many suggest, I do not favor the death penalty in order to get back at the offender or to “punish” them. If anything it seems to me likes putting someone to death as opposed to keeping them locked up for 10s of years seems to be more humane.

You got the wrong guy

2013-01-20T13:01:00.005-08:00

Chapter Summary:

· A study found that there were 416 people exonerated of murder from 1990-1991

· Other countries have made attempts at ensuring that people are not wrongfully convicted or put to death. America has yet to follow suit.

· When looking at our justice system one of the most troubling issues is when someone who is innocent actually pleads guilty due to fear of being found guilty by a jury and sentenced to an even harsher penalty.

· The innocence project lists 5 main causes: 1. Eyewitness misidentification. 2. Confessions that is false. 3. Testimony from jail house snitches. 4. Junk science or misleading science that leads to a conviction. 5. Prosecutorial misconduct.

· The author then addresses each of the 5 individually and the last one which is prosecutorial misconduct is the one I find most troubling but at the same time fixable.

· There are 26,520 employed in the 2,344 offices around the country

· The author really talks in depth about the great amount of discretion prosecutors have and the fact that most of them have immunity from prosecutions.

· The next section talks about ineffective counsel for those who cannot afford to pay an attorney.

· In conclusion the author blames the lack of proper representation and wide prosecutorial discretion to be 2 of the main factors in wrongful convictions.

Reflection:

While I agree with the 5 causes listed above, if I had to pick 2 main causes of wrongful convictions they would be the CSI affect and the lack of proper representation for the indigent. I base my opinion on what I have read and learned while at USI and from personal experience. My cousin was recently arrested and charged with driving a vehicle when his license is revoked for life (a C felony 2-8 years). I found it hard to believe that driving a vehicle with your license revoked for life was actually a C felony. So I paid to print off my cousins entire record. What I found amazed me. My cousin has a lengthy criminal record most offenses being minor traffic or liquor law violations but few being serious felonies in which he did serve a total of 1 year in prison. His number of offenses is not what I found interesting, what I found after reading the court briefs and the statements of lawyers on both sides is that my cousin never could afford an attorney and therefore, he was appointed a public defender.

His most serious offense was driving under the influence resulting in bodily injury, possession of a controlled substance, and arson. All of these charges came at the same time. While reading the story the prosecutor presented to the judge at the initial hearing I noticed that there had been a change in my cousin public defender. Flash forward to sum up this long story, I ended up counting 4 times in the process of this case in which my cousin was assigned a new public defender. Naturally there was no trial, he plead guilty to all of the original charges. There was no offer to reduce the charges if he agreed to plead guilty. It seems to me that the prosecutor got away with convictions on all these charges without having to do any work what so ever. My cousin sentence was significant and he also lost his license for life. Regardless of whether or not he was actually guilty of any or all of these charges, there was no attempt by his numerous public defenders to even try and defend him against said charges.

The story above is a perfect example of one of the biggest reasons for wrongful convictions. Just recently I asked my cousin about this case and all the charges and he told me that he was drunk, he did crash his girlfriend’s car which injured her, but the drugs they found in the car were hers and he still maintains today that he had no idea she had drugs in the car. If what he says is true then he was wrongfully convicted of the possession of a controlled substance charge (which was a felony). Had any of the numerous public defenders assigned to his case attempted to challenge this charge maybe the prosecutor would have dropped it or he would have been found innocent. Everyone deserves their day in court and to expect their attorney (appointed or paid for) to defend them to the best of their ability. In my cousins case this did not happen nor does it happen in so many other cases involving those who cannot afford an attorney. This is a serious problem and it troubles me deeply.

Getting high legally?

2013-01-20T13:01:00.002-08:00

Summary of those who say YES:

· Close to 100 million Americans have tried it at least once

· With nearly 700,000 arrests costing between 10-15 billion in costs weed is overly harshly punished

· Judge Young was quoted saying “marijuana in its natural form is one of the safest therapeutically active substances known to man.”

· The notion of weed being a gateway drug is wrong. It is wrong to think that just because someone tries weed that they will then smoke crack or something else

· You cannot overdose on weed and only a few of the lung cancer cases are because of weed smoking.

· Many places have already voted to legalize it for medical use.

· America could make huge profits from it, it may help those in pain, and it has less traumatic side effects when compared to alcohol and tobacco.

Summary of those who say NO:

· Weed is currently a schedule 1 drug meaning that there is no known medical value and that it’s highly addictive.

· Obviously drug use would increase significantly

· We will never be able to tax the drug to the point that kids and teens cannot afford it.

· Weeds role in the ER has tripled in the past decade

· Only 6% smoke weed on a regular basis illegally of course.

Reflection:

After extensive testing of course if we can honestly say that there is some medical use in weed then I see no issue with making it a schedule 2 drug. However, just like pain pills are stolen and then abused among other prescribed drugs, we would have to find a better way for patients to use. Merely picking a bottle of weed up at cvs pharmacy will only lead to an increase in theft and robbery’s.

Of course the fact is there is no known way to ensure that those in which are not prescribed weed will not somehow get their hands on it. However, when compared to other commonly abused drugs like loratabs, oxycotin, and valium. A person stealing someone’s medical weed would in fact be safer in their illegal abuse of the drug. Therefore, assuming that there is some medical value, the positive medical usage, the profits that would be made, and the minimal danger if the drug is stolen and abused, I conclude weed should be Legalized for medical use only.

3 Strikes and you are out

2013-01-20T13:00:00.001-08:00

YES Summary:

· A study conducted over 30 years showed that for each arrest a person was subject to, they claim to have gotten away with 8-11 other serious crimes.

· There are super predators that continuously recidivate throughout their life

· Science has developed a way to identify psychopaths.

· Police, prosecutors, and judges play a huge role in identify the most serious offenders.

· Studies show that 3 strikes or other get tough laws are effective deterrents

· Criminals are not born they’re made, and it all begins with their upbringing.

NO Summary:

· 3 strikes laws and similar legislation are basically set up to be efficient and easy to conduct.

· Most cases end with a plea bargin but it has been shown that with three strike laws cases go to trial significantly more often which of course cost money.

· Has led to the overcrowding of prisons and the early release of many offenders

· The increase of discretion among prosecutors and judges show a lack of control and makes it unpredictable.

Reflection:

When it comes to this issue I am stuck in the middle, but that is where I think the answer to both sides lay. We should allow for polices like 3 strikes but with that we need to account for circumstances that may not warrant a life sentence. If a guy has 2 strikes in 1980 then is caught stealing a candy bar in 2012 we obviously should not give him life in prison for that. The answer to nearly every difficult question is found in the middle and moderation is the key to everything.

Do strict gun laws reduce crime?

2013-01-20T12:59:00.001-08:00

Summary of those who say YES:

· Handgun use increases the rate of death by up to a factor of 5

· Guns are not what are most used in criminal events. On 4% of all crimes and only 20% of all violent crimes

· However assaults involving guns are 7xs more likely to end in a killing

· While stats looking at crimes involving knives compared to guns do not show a extreme difference as one may expect.

· Guns are more likely to kill because of there make up and bullets

· The article went on to describe three general types of gun control in which we have previously discussed.

· Stated that asking the question whether or not gun controls work or not is a fallacy

Summary of those who say NO:

· The term strict gun control has no clear meaning so he then clarifies is opinion of what the definition is.

· Stell identifies many of the arguments that zimring makes

· However, he then goes on the point out some of the areas in which they both agree such as well enforced gun control laws would only lead to a marginal dip in the crime rate.

· The next section talks about Zimring’s argument about the challenges facing the reformation of U.S. firearm policy.

· Stell notes that Zimring includes suicide which according to Stell is not a crime and makes up 30,000 deaths by firearm and should not be counted.

· Countries with strict gun laws or even forbid guns have extremely high suicide rates.

· He then goes on to talk about what types of weapons most offenders use. If any weapons at all. Furthermore he gives us stats about those whom are shot and those who actually do the shooting

Reflection:

There is no arguing the fact that guns are meant to kill. Of all the murders committed and suicides, guns were used more than anything else. Ok not that we have established that I must fall back to the general and popular argument and that being that even if there were no guns in America people will still kill and people will still take their own lives.

Since we have never had a complete handgun ban and the fact that America has always had a lot of firearms within our borders, we can never know rather or not high or increasing homicide rates are solely linked to firearm control or lack thereof. There is simply no way to answer this question fully and truthfully especially when one is trying to analyze the homicide rate of the whole U.S. for example let’s say San Francisco places strict gun controls and then someone notices that the homicide rate has dropped. Does that mean that the gun controls that were implemented are the sole cause for the drop? Maybe there was also an increase in homosexuals who tend to be less violent or maybe since we are in a recession people cannot afford guns or ammo. There is simply no way to know if gun controls by themselves influence the homicide rate. We must look at many other external factors throughout the United States.

Making sense of the criminal justice system

2013-01-20T12:57:00.000-08:00

Summary:

· Every year there are at least 60 million 911 calls

· 2.2 million can be found in jail or in prison

· About 4000 will die in jail or in prison each year.

· It is impossible to detangle politics from the operations of criminal justice system as all law enforcement

· The media plays a large role in influencing how we do our jobs

· Arguably the Supreme Court plays the largest role in determine and influencing how the criminal justice system functions.

· Criminal and social theories of deviance are always present in our methods

· Local state politicians also have influences over the functioning of the criminal justice system.

· Critical criminology deals with feminist and Marxist theories

· No area in the criminal justice system can avoid the effects of race

· We must not forget that not only have blacks been treated poorly but many other groups such as American Indians

· We must also take into account the CSI effect on citizens and jurors

Reflection:

For my last reflection I am going to talk about the scenario presented to us in class about what our plan would be to reduce the prison population while saving money.

There were a few ideas passed around during class regarding this question, but if I remember correctly all of the ideas (even mine) were reactive. In other words, ideas like more probation, rehab, end 3 strikes, judge/prosecutorial discretion, ect are all ideas for when a crime has already been committed.

I have learned a lot in the last 3 years about the many areas of the CJ system, and I have taken away a wealth of knowledge. But if I had to choose the one main thing I have learned I would say I have learned that all stages of the CJ system are geared towards a REACTIVE strategy. From police officers who drive around for 8 hours waiting for a 9/11 call, to prosecutors charging 19 year old with a D felony for their first drug possession charge (I know someone this happened to*). What are we doing to address the ROOT CAUSES that lead many to commit deviant acts?

I know the local police, sherrifs, and state police often times go to elementary school/high schools and talk to kids about not doing drugs ect. But that is no where near good enough if we REALLY TRULY want to reduce crime.

So I have developed a plan in the past 10 min (bare with me). First issue, drug offenses. People are normally not born drug addicts or criminals. Their turn down a path of crime (drug offenses) often times stems directly from their upbringing. Whether it be parents who are drug addicts, single parent household, abusive households, and so on. I think you would be hardpressed to find a person, that has been charged with a drug offense, that DID NOT have some issue in their childhood and/or upbringing. SO, a couple of PROACTIVE******** ideas to help this issue:

1. States and the Federal Gov. need to INVEST in parenting class, support groups for single parents, and other things of that nature. AND I do not mean just throw money at it. We really need to INVEST run commericals, post flyers, MAKE IT AS PUBLICALLY KNOWN as possible. Parenting is hard no matter what the situation, but having a support group behind you to help in any way, would in my opinion really help.

2. This may be a long shot as far as being realistic but just like there is always a judge on call we need to have SOCIAL WORKERS, or someone similar, on call 24/7. There job would be to respond with the police to every DOMESTIC situation, every call dealing with children, every call dealing with drugs, to name a few. This is a more reactive approach but I imagine that if a unbaised social worker responded to the situations above, perhaps those people who may or may not be in trouble, would not feel so overwhelmed, scared, and nervous if they were charged. The job of the social worker would be to sit down with the person before they go to jail or even if they are not going to jail, and just talk to them (confidentially). In my head I picture a 18 year old caught with his parents prescription pain meds. He is facing a D felony, hes scared, embarrassed, ect. If the social worker talked to him and found out that he is taking drugs because his dad just died and he doesn’t know how to deal with the pain, then the social worker could recommend he not be taken to jail (perhaps taken home where he could sit down with his mother and the social worker and talk). Like I said this idea is a long shot and I have not really thought about it enough to come up with a steady plan but it’s a start.

3. MAKE Psudeophedrine prescription ONLY.

4. Domestic situations: ABSOULUTLEY NO MANDATORY ARREST policies. I understand police may not be fully trained in dealing with a fight between a husband and wife. But from my personal experiences the police are all to quick to arrest the male with few questions. Example: A guy comes home from work, his wife is mad at him for ummm lets say, not being around enough to help her out or show her affection. She is calling him everything under the sun. 3 hours go by with this continuing, by now he has had a few beers, and is losing his patience. He gets up to get a beer and is confronted by his wife who verbally lashes out and then smacks him, maybe punches him in the stomach. He then pushes her violently, or maybe smacks her. Police show up see a red mark on her face he goes to jail. Even if found innocent his friends, family, coworkers may very well label him a wife beater. I certainly do not condone physical violence by either party. But realistically can we expect MEN to not be aggressive or have natural violent inclination when faced with situations like he was? Unfortunately, men are hardwired for agression, violence, physical responses. Furthermore, many of us deal with stress POORLY therefore we just react naturally in stressful situation. If a social worker came with the police and spoke to both parties and found out that they both regret it and they still love each other and that this outburst by both parties was based on a failure to communicate, cope, and understand eachother. Should the man go to jail and have this charge follow him for a long time? In this case I would say NO. The best approach would be counseling for BOTH parties. Support groups, therapy the whole nine yards. OF COURSE there are many situations that are not so mild in nature. Sometimes guys beat women for no obvious reason. SO I AM NOT saying everyone should get a pass or be sent to councling. BUT a social worker is better equiped to determine the seriousness of the situation, rather or not it’s a freak outburst that is not likely to occur again, or if the guy has a problem that the social worker determines cannot be addressed right away and therefore he should be taken to jail.

5. Offer a large amount of public outreach programs for current inmates to work in. MAKE INMATES AS PUBICALLY VISABLE as constitutionally allowed. I DO NOT MEAN HUMILIATE them, but have them work more in public like on roads or cleaning up highly visible areas. KIDS, teens, and adults will see them. Kids will ask their parents about the inmate (the parent then can lay the foundation for a lawful path) teens will see their options: 1. Do not commit crimes. 2. Take your chances, but if caught you are going to be the one in orange cleaning up green river road for all to see. Take our meth addicts, sexual offenders, ect and (if they want to) speak to kids, teens, and adults. If we PUT A FACE ON CRIME it is more likely to hit home with younger kids, and teens as opposed to some random commercial showing a guy that the kid will never see in person.

6. Lastly for now, Sexual offense: Often times the ROOT CAUSE rests in their upbringing so we must ADDRESS that area HEAVILY. We must come up with more ways to help victims feel comfortable and safe when thinking about reporting a sexual violation. In Iraq we always heard about females being raped and most of us expect females in Iraq to be victims of rape more often than males. BUT IN FACT, more America male soldiers were raped by other male soldiers from Uganda, Turkey, and Egypt. However, they victims almost always waited until they were about to fly home for good before reporting it. WE MUST FIND A WAY TO INSTIL TRUST, SECURITY, SAFETY, and Confidence.

More prisons?

2013-01-20T12:55:00.003-08:00

Summary:

· In 2005 nearly 5 million people were on probation or parole.

· Also in 2005 there were 10.2 million arrests.

· Many of our criminal justice systems policies are ill-conceived, ineffective and even destructive in the long run.

· In 2005 1.43 million people were housed in state and federal prisons.

· Federal and state prison populations have increased a total of 4% from 2004 to 2005.

· On study showed that for every $1 spent of taxpayers money, they saved $17.20 in costs related to crimes.

· There can be little dispute that incarceration 1.4 million people has resulted in a decrease in community crime.

· One study found that the 300% increase in federal and state imprisonment resulted in a 27% decrease in crime rates between 1972-1996

· Steve Anos estimates that a 10% increase in imprisonment will decrease crime 2-4%

· Operating costs for a prison in 2003 was 68 billion total and $22,650 per inmate for a year.

· Some indirect costs of incarceration are the spreading of disease

· One study found that female spouses spent $292 per month to support someone in prisons.

· Imprisonment of women has jumped 47% compared to 30% of men and this has had a devastating effect on families.

· In 2005, 101,000 inmates were housed in privately ran prisons representing 6.7% of the inmate population in America.

Reflection:

On its face the answer to this question appears obvious. Should we build more prisons? Well if our population continues to grow and if police continue to do their jobs along with judges continuing to sentence convicted offenders than yes we should. For someone to say hands down no we should not build more prisons seems to be suggesting that we should arrest fewer people, or prosecute fewer people that have been arrested, or perhaps we should stop sentencing convicted offenders to prison. While I am all about developing different methods for dealing with minor non-violent offenders and drug users, that does not mean that I am suggesting that we stop incarcerating those convicted of crimes that warrant incarceration.

Yes prisons cost a lot to maintain, but they also provide jobs, and many programs allow and require some inmates to help improve their community such as picking up trash along road ways. Yes the incarceration of a mother or father husband or wife can be devastating and costly to some families but it seems like in those situations we are blaming the system instead of the fact that a person committed a crime and was convicted in accordance with state and federal laws. It is wrong to demand perfection of the system. Just because his family is going to be negatively affected by his incarceration should we simply ignore the crime a meth dealer commits by selling meth? Furthermore, should we not care about the families this one man has negatively affected as well? The world population continues to grow at an alarming rate as does the American population. Population grows and crime seems to go hand in hand. We must not look away from those who choose to break the law rather on the topic of building prisons, we must build in accordance with the amount of criminals prosecuted and convicted.

Prisons

2013-01-20T12:54:00.003-08:00

Summary of YES:

· Out of the 400 inmate at the supermax prison in Colorado 20% are there for murder of other inmates.

· 18% for assaulting another inmate with a weapon. 16% for serious assault on a corrections officer.

· 10% for escape and 5% for rioting.

· A benefit to the dispersion model is the fact that no single prison is required to deal with a large number of problem inmates.

· The consolidation model involves placing all highly dangerous inmates at one location with special features and rules.

· It is much more efficient and safe to implement the consolidation model.

· Correction officers feel and are safer, but there have been drawbacks in combining such a highly violent mix of prisoners.

· The main purpose of the Supermax is to control the inmate’s behavior until they can demonstrate that they can be moved back to a traditional prisons.

· The challenge facing Supermax prisons is to properly balance staff and inmate safety needs against important constitutional and correctional management principals

Summary of NO:

· 75% of those respondents to a national survey reported some or very little confidence in state prison systems.

· To accommodate increases in prisons admissions and time served, 168 states and 45 federal prisons have been built since 1990.

· In 1987 50 of the inmates that testified that they were abused by corrections officers were found to not be credible witnesses.

· Guards treat those prisoners in Supermax prisons inhumanely such as shackling them to their beds and keeping them confined to their cells for 22 hours a day.

· The placement of those into Supermax prisons is arbitrary at best. It is based on evaluations of the inmate’s behavior not a court of law.

· Supermax prisons are the most costly experiment in our criminal justice system. The system for deciding who is placed in these prisons is arbitrary and the treatment is cruel and possibly in violation of the constitution.

Reflection:

In my opinion when addressing this issue the two main issues that need to be focused primarily on are the safety of corrections officers, and the cost of running Supermax prisons. Sure the treatment of those prisoners sent to such prisons must be addressed but it comes in a distant 3^rd compared to the other 2.

We must not forget that those inmates sent to supermax prisons are the most violent and dangerous we have. If our research concludes that placing such people into supermax prisons increases the safety of corrections officers and other inmates, and if our research concludes that the cost is not absurd, we should continue with supermax prisons. However, we should be very generous in the cost aspect because it is hard to place a number on officer safety. The other side makes a good argument about the treatment of inmates and constitutional issues, and I think those issues should not be overlooked. I am just saying that we should first worry about officer safety and then work our way down

Youth and crime

2013-01-20T12:53:00.002-08:00

Summary:

· Juveniles tend to be overrepresented in their crime involvement

· Most offenses are public order offenses

· 1993 3,700 juveniles were arrested for homicide

· Their homicide rates have been decreasing

· 2003 there were 2.2 million juveniles arrested

· 1.66 million were for non-index crimes

· 92,000 were arrests were for violent crime

· There are racial differences in juvenile arrest rates

· Arrest rates for black juveniles have significantly increased

· Prior to the 1960’s juveniles were afford very little due process protection under the constitution

· By the end of the 1970s that changed and they were afford greater protections but less than adults.

Reflection:

A lot of jobs including the military run background checks prior to employment or enlistment. A lot of the time anything more than a couple of traffic tickets will leave you jobless. I have one speeding ticket on my record so that is of course what an employer will see and judge me by instantly. If every crime I have committed, from every time I have sped on up could be put on paper, like most American’s my list would be quite long. Lucky for me I was never caught typing houses or throwing eggs at cars when I was 15 or even driving drunk numerous times before I was 21 and even a couple of times after I was 21. I was never arrested or charged for assault and/or battery for the fights I have been in. However, millions of Americans under 18 are each year, sometimes changing their lives forever.

Given that employment, student loans, car loans, home loans, and financial aid, often times are based on our record we really should use caution and think about the long term affects giving a juvenile a record may bring to them and society.

Is the death penalty unconstitutional for juveniles?

2013-01-20T12:52:00.002-08:00

Summary of Roper v. Simmons:

Seventeen year old Simmons and Benjamin made a pact to kill an elderly woman with whom Simmons had previously gotten into a car accident. Simmons tied the woman up and threw her off a bridge, drowning her in the river below. Simmons was charged with burglary, kidnapping, stealing, and first-degree murder. He was tried as an adult. Simmons was found guilty on all charges, and was sentenced to death. Simmons appealed his conviction to the Missouri Supreme Court, which overturned his death sentence and instead sentenced him to life in prison with no possibility of parole. The United States Supreme Court granted certiorari.

The issue in this case is Can an individual who committed capital murder at seventeen years of age be sentenced to death? Justice Kennedy wrote for the majority.

He held no. The Eighth and Fourteenth Amendments of the United States Constitution prohibit cruel and unusual punishment, and the execution of an individual who committed capital murder before he reached eighteen years of age classifies as cruel and unusual punishment. Under Stanford v. Kentucky (1989), the law allowed for such an execution. However, since that decision was handed down, the United States has become the only country in the world that allows for the execution of juvenile offenders. The United Nations in that time period has also ratified a convention document prohibiting the imposition of capital punishment upon individuals under the age of eighteen. The rest of the world has decided that capital punishment for juvenile offenders is cruel and unusual, and the United States should be no different. Therefore, the rule of law from Stanford no longer controls, and Simmons’s sentence to life imprisonment without parole is affirmed.

Justice Scalia wrote a dissenting opinion. The United States should be making its own laws and interpretations of those laws rather than looking to other countries and what they decide to do. The United States does not benchmark its judicial interpretations against other countries in other matters, especially regarding the separation of church and state. The United States is also one of only six countries to allow for legal abortions. Should that law be changed as well because most other countries do not believe in it? The Supreme Court should be making its decisions based on its own beliefs, not the beliefs of others.

Reflection:

In my opinion the issue of whether or not the death penalty is cruel and unusual punishment when applied to those under 18 years old is NOT a question that is best answered by the court. The United States Constitution does not require that states allow the death penalty is simply does NOT PROHIBIT it. If our views on the death penalty more specifically who may be subject to it have changed, then all that is needed to reflect society’s view is to PASS A LAW. There is nothing unconstitutional about a law banning the death penalty just as there is nothing unconstitutional about a law that allows it. The views of the current society are best reflected through legislatures NOT THE SUPREME COURT. Asking and expecting the Supreme Court to change the constitution every time society has a different view towards an issue that is NOT expressly mentioned in the constitution is to essentially make nothing of the document.

Should sex offenders be castrated?

2013-01-20T12:51:00.002-08:00

Summary of YES:

· What we are currently doing about our sex offenders is failing

· We should realize that many sex offenders are victims of overwhelming sexual impulses in which they cannot control.

· One dr. stated that testosterone can be so strong in some men to be overwhelming.

· Castration would allow offenders to be more open to rehab and increase their likelihood of a successful rehab.

· It’s a simple surgical procedure.

· Voluntary castration was made legal in demark and the results were amazing

· The recidivism rate of those castrated dropped to 4.3% compared to 76% of those not castrated.

· A study of 550 sex offenders found that the number of actual victims totaled 190,000

Summary of NO:

· The greatest and most controversial issue is the removal of a mans ability to procreate as a punitive measure.

· Castration would violate their rate to privacy held in Griswold

· Castration would violate the 8^th amendment as being cruel and unusual.

· It would be cruel and unusual because states cannot show that castration is the least restrictive means of exercising their police powers to protect their citizens.

Reflection:

Freedom is the greatest privilege we have as American citizens. However, it is not until we face losing such freedom that we recognize how important it is to us. To place a sex offender in the situation of choosing castration and freedom, or prison and therefore no freedom will surely lead to a majority of offenders choosing castration and freedom. As I mentioned freedom is a privilege and not a right that cannot ever be taken away. Rather, we say that if you commit certain acts (crimes) you forfeit your privilege of freedom by going to prison for a certain number of years. However, most of the time offenders are allowed to regain their freedom in whole or in part once they serve their time. Castration is forever punishment for a non-capital offense that we have never accepted in our society. To suggest that we should castrate offenders, even though its “voluntary” in a way, would be to say that we should cut the hands off of those who commit larceny or even break the legs of those who flee from police. Both of those are felonies but our society has always strived to punish offenders in a reasonable way. Punishments for non-capital crimes that last forever are not the punishments we as a society have ever acceptable nor shall we.

Does Porn increase the chances someone will commit rape?

2013-01-20T12:50:00.003-08:00

Summary of YES:

· It should not be assumed that violence only occurs in the making of violent porn.

· 25%-30% of college males admit that they would be more likely to rape if they could get away with it.

· One study found that males aging between 14-18 said that if a female gets him sexually excited, that would make it more ok to rape her than other factors.

· Porn is not the sole cause of rape but it is a part of a multi causal relation to rape.

· Males that were predisposed to rape fantasies and sexual dominance and submission are more likely to commit rape.

· Being more exposed to pornography creates an appetite for sex therefore leading to many causes of rape.

Summary of NO:

· Studies show those males with less exposure to porn have an increased rate of rape.

· Some males that watch porn may be getting their sexual cravings out of their system thus leading to a reduction in their feeling to rape.

· The states with the highest internet access have fewer rapes compared to states with less internet access.

Reflection:

Certainly the upbringing, illness, and previous experiences of being victimized play a role in explaining why some males end up committing rape, those factors are a given for this reflection. However, in regards to the average male that has not been affected by any of the above, does simply watching porn increase the likelihood or even cause normally average males to commit rape? No. After reading the article and discussing this topic in class, I hold the position that, if anything, watching porn decreases the likelihood of the average male committing rape. I think that those who choose to rape do so to fulfill a need to control a female. I do not think they rape to “get off.” However, I have no doubt that a majority of males that log on to watch porn do so specifically to “get off.” Therefore, those who commit rape are fulfilling a desire, need, or want. Whereas, those watching porn do so to fulfill a want for physical pleasure. I am not aware of any study on the mental status or attitude of males before “getting off” compared to after, but I assume that the average male goes through a significant mental change. As males we are designed to procreate. The desire, want, need is present in a vast majority of males naturally. This desire has not changed with time, rather what has changed is the method we go about satisfying this natural emotion.

Before the internet and dvds there were few options other than our imaginations, pictures, or even committing rape or sexual assault that could help us fulfill our desire to experience the feeling that results in “getting off.” Now, we have nearly an endless amount of free videos to watch online and we can do so as often as we want privately. So for the average male who naturally has the desire to “get off” we can do so anytime we want and I imagine that there are millions of males that do so on a daily basis compared to those in the pre-internet era. Those males back in the day may have gone days, weeks, or months without fulfilling this natural desire. I can certainly imagine the rate of rapes being higher during that time, because the longer a male goes without fulfillment the stronger the desire becomes, it really is quite powerful, even to the point of changing the way a guy lives his life or views society. I imagine for some, that after months or years of not fulfilling their desire brought them to a breaking point, and they fell prey to their emotions and committed rape. However, for a male to reach that breaking point, I think there has to be some sort of mental change that occurred over those months or years. Consequently, once they do “get off” its no longer satisfying and they much continue to search for satisfaction. This problem is no longer true. Males watch porn and fulfill their natural desire on a daily basis or anytime they want, thus decreasing their likelihood of reaching their breaking point.

Intellectual Journal

2013-01-20T12:49:00.001-08:00

Summary:

· Females 18 and over are 51% of the US population but only 17% of those convicted of a any felony

· At all stages of the criminal justice system men are more represented than women.

· Females are vastly underrepresented in the population of arrestees

· Women are arrested at higher than average rates for theft 38%

· 21% of all females’ arrests are for larceny/theft and fraud.

· Females made up only 19% of all drug arrests

· 38% of victims of female homicide are their own children.

· 36% of victims were females’ partner

· Incarceration of females has sharply increased and some claim its for their own good. However, it is clear that drugs play a large role in female incarceration.

· Another important factor is that most females arrested and incarcerated are minorities and poor, therefore they cannot make bail.

· Women receive capital punishments are a far less rate than males only 1.6%

· Women are subject to stalking and inter-partner crimes at a greater rate than males. Also female jurors are more likely to convict female’s offenders than male jurors.

Reflection:

My major is criminal justice and my minor is sociology. As a result I have experienced a greater exposure to empirical research and intellectual discussion’s, regarding all aspects of our criminal justice system and our social environment, in which most of the public will never experience. I suspect that a majority of our population holds a similar view towards women that I had prior to college. That general view of women being gentle, innocent, physically weaker, and more emotionally expressive than males.

If my ignorant and over simplistic view of women prior to college was similar to a majority of American’s its no wonder women are vastly underrepresented in relation to arrests and convictions. That being said it’s also not surprising that women convicted or even just charged with a crime face a greater level of negative stigma. American’s for the most part do not want to imagine their female population being capable of committing the same violent crimes or any other crimes as their male population. Therefore, females are going to be charged and convicted at a much lower rate than males, given that we all know males do commit more crimes. Also though, since we do not want to imagine our female population in such a negative manner, when a females is in fact convicted we see her as being less of a female and more of male or even outcast.

Do guns lead to more crimes? I think NOT

2013-01-20T12:47:00.000-08:00

In the last 6 years the Supreme Court accomplished something it had never attempted since the founding of our country. The court examined, defined, incorporated, and applied to the states the protection of an individual’s right to possess a firearm in their home for private self-defense. Although the court’s rulings in Heller and McDonald are considered landmark cases in our country’s jurisprudence; both rulings essentially left judges, legislators, and citizens with more questions than answers.

In June 2008 the United States Supreme Court performed a thorough and in-depth examination into the meaning of the Second Amendment. In the case of District of Columbia v. Heller (2008), with Justice Scalia writing for the majority, the court held that the Second Amendment protects an individual’s right to possess a firearm in their home for self-defense. However, Justice Scalia made it clear that this right, like other rights, is not unlimited. (Scalia, 2008) “ Nothing in our opinion should be taken to cast doubt on prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” (Scalia, 2008, p.54).

While many scholars identify numerous issues within the 64 page opinion, arguably the most important issue is the fact that the District of Columbia is not a state. Rather it is a federal district, and therefore this ruling and newly identified right apply only to the laws and actions of the federal government (Blackman, 2011). As a result, two questions arise, whether this right should be protected from state actions, and if so, under what constitutional provision should it be incorporated (Thomas, 2010)? Those two questions were answered in June 2010 in the case of McDonald v. City of Chicago (2010).

Writing for the majority in McDonald v. City of Chicago (2010), Justice Alito restated that the Second Amendment right identified in Heller protects the right of an individual to possess a firearm in the home for self-defense and that “We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller” (Alito, 2010, p. 44).

Analysis of Opinions

In Heller, the court thoroughly analyzed and gave us the meaning of the Second Amendment. However, many scholars sharply criticized the courts failure to offer any clue as to the scope of the right in the Second Amendment. Furthermore, the Heller opinion did a poor job providing guidance to lower courts as to the proper method of review that should be applied (Rosenthal, Malcolm, 2011). Instead the majority’s opinion was primarily focused on defining key phrases such as “Keep and bear arms, and the people” (Miller, 2009).

In McDonald, the first half of Justice Alito’s opinion reviews the historical background of incorporating the Bill of Rights through the Fourteenth Amendment. He mentions that originally the Bill of Rights applied only to the federal government until the ratification of the Fourteenth Amendment in 1868. After a lengthy historical review, he looked at whether the right contained in the Second Amendment should be protected from unlawful state actions as well as federal. He concluded that the right is in fact protected from such unlawful actions by the states under the Due Process Clause (Alito, 2010).

In order to be considered for incorporation a right must be deemed “Fundamental to our scheme of ordered liberty” (Alito, 2010, p.4). Moreover, to be fundamental, a right must be “Deeply rooted in our nation’s history and traditions” (Alito, 2010, p.4). He concluded that the framers and those that ratified the Fourteenth Amendment believed the right to keep and bear arms was among such rights vital to our system of ordered liberty. Therefore, the right is fundamental and is fully applicable to the states (Alito, 2010).

Justice Breyer wrote a dissenting opinion that sets out numerous arguments against the Heller opinion and against incorporation of the right found in Heller. The first of four points he argues is that the fear of the federal government taking away the arms of the militia was the reason the Second Amendment was codified. He then mentions that there is no consensus in America that the possession of a firearm for self-defense is a fundamental right. Thirdly, he looks at the other rights that have been incorporated and argues that unlike those rights, the right to possess a firearm for self-defense does not advance any constitutional objective (Oyez, 2009).

Specifically, the constitutions objective to protect the rights of a minority against acts of a majority, such as the First, Fourth, and Eighth Amendments effectively do. Lastly he argues that there is a substantial reason to believe that the incorporation of this right will drastically interfere with the constitutional objectives of courts and legislatures and the states to the federal government. Essentially he claimed that states have already established extensive laws and regulations regarding firearms and by incorporating this new right, all such laws and regulations are now subject to constitutional challenges. Furthermore, he asks how federally appointed judges compared to elected representatives are better suited to answer all of the questions that are sure to arise (Oyez, 2009).

Privileges or Immunities, Due Process, and Equal Protection

Section One of the Fourteenth Amendment holds: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (U.S. Const., amend. XIV, § 1.).

Arguably, the first section contains the three most debated clauses in the United States Constitution. In modern times only rights being violated under the Due Process Clause and the Equal Protection Clause are sought for a remedy in court. Rarely is there ever a claim made under the Privileges or Immunities Clause. This is due to the extremely narrow interpretation the Supreme Court gave the Privileges or Immunities Clause in the famous Slaughterhouse Cases (1873). To develop a basic understanding of the clauses in section one it is helpful to understand the context and purpose in which the Fourteenth Amendment was ratified in 1868.

In 1833 in the case of Barron v. Baltimore, Chief Justice Marshall established that the Bill of Rights only applies to actions of the federal government, not individual state actions (Alito, 2010). The holding in Barron remained the rule of law until the ratification of the Fourteenth Amendment in 1868. After the Civil War, Congress successfully passed legislation that established blacks and former slaves as citizens of The United States. Such legislation like the Freedman’s Bureau Act of 1866 which in part stated “That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, the constitutional right to bear arms shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery” (Volokh, 2010, p.7). In short Congress wanted to ensure that newly freed blacks were given all the same rights that white males held. However, legislation did not keep former slave owners and confederate soldiers in the South from treating blacks inhumanely (Alito, 2010).

As it became increasingly evident that simple legislation could not protect blacks and their newly recognized freedoms, the states ratified the Fourteenth Amendment. The main goals of the amendment were to establish the requirements of claiming American citizenship, to make the Bill of Rights applicable to the states via the Privileges or Immunities Clause, and to layout the protections citizens have from individual state action (Sandefur, 2010). However, before the amendment was really given a chance to fully exercise its authority the U.S. Supreme Court in the Slaughterhouse Cases (1873) gave the Privileges or Immunities Clause an extremely limited interpretation.

Justice Miller writing for the majority held “The Privileges and Immunities of citizens of the United States are those which arise out of the nature and essential character of the National government” (Nieto, 2011, p.1121). Basically he held that the clause only protected a few rights that if not for the federal government would not exist (Nieto, 2011). Four years after its ratification, the amendment that was created to apply the Bill of Rights to the states and to protect citizens rights from unlawful state actions, appeared to be dead as a result of the Slaughterhouse Cases (1873).

For roughly a half-century the Fourteenth Amendment saw little action in regards to cases addressing the goals the amendment was founded on. However, in the early 20^th Century the court began to look at whether or not the rights contained in the Bill of Rights could be protected from state actions under the Due Process Clause. The court eventually adopted the practice of selective incorporation, and began incorporating the Bill of Rights under the Due Process Clause and applying them to state action. It took most of the century, but eventually the court incorporated nearly all of the rights protected in the Bill of Rights (Alito, 2010).

The last amendment in the Bill of Rights to be considered for incorporation was the Second Amendment (Vernick, 2011). It wasn’t until 2008 in the Heller case that the Supreme Court found an individual right to bear arms for self-defense protected by the Second Amendment. Furthermore, it wasn’t until 2010 in the McDonald case that the Supreme Court held that the right identified in Heller was deeply rooted in our country’s history and traditions and that it was fundamental to American citizenship; therefore making it fully applicable to the states (Alito, 2010).

Someone not familiar with constitutional law probably has no idea what the Due Process Clause means or how it works. The narrow interpretation of the Privileges or Immunities Clause has been upheld for 140 years; therefore it appears safe to say that the Due Process Clause has effectively replaced the Privileges or Immunities Clause as the primary vehicle in which to limit state actions that infringe upon an individual’s rights. We shall now turn to the questions of what the Due Process Clause means and how does it work?

There are two types of due process, procedural and substantive. When there is a case claiming that some sort of state action or law is interfering or prohibiting an individual from exercising any right protected by the Fourteenth Amendment, the initial question a court asks is “Has the government deprived some person life, liberty, or property” (Geller, 2007, p.1)? Procedural due process spells out the procedures the government must take in order to infringe or limit an individual’s right(s) (Hass, 2006). For example if the government is going to take your farm land to build a road it must give you a chance in court to challenge its taking and then justly compensate you if the state ends up actually taking it. Rights that fall under substantive due process, such as freedom of speech, may not be taken away or limited by the government unless the government can prove a compelling state interest in its reasoning and that there are no other less restrictive ways to further that interest (Geller, 2007).

If there has been some governmental action affecting a person’s right, the next step is to look at whether or not the right affected is a fundamental right or non-fundamental right. If it’s a fundamental right, like the right to possess a firearm in the home for self-defense, any law or governmental action infringing on that right faces strict scrutiny. The burden is placed on the government to show that there is a compelling state interest that justifies their interference (Harpaz, 2010). However, even if there is a compelling interest shown it still may not be compelling enough to justify the state’s interference in a person’s right. On the other hand if the right is non-fundamental, a law or governmental action faces a rational basis test, which is a much lower level of scrutiny. The state merely has to show a legitimate ends to their action (Geller, 2007).

The last clause in Section One of the Fourteenth Amendment is the Equal Protection Clause. The Equal Protection Clause prevents unreasonable discrimination based certain classifications (Geller, 2008). There are three levels of review applied to laws dealing with this clause and the Due Process Clause. Rational basis review requires a state merely have legitimate ends. Falling under this review would be non-fundamental rights and non-suspect classifications. A law can treat different classes of people differently so long as it falls under the rational basis review (Harpaz, 2010).

Next is intermediate scrutiny, which requires that the states purpose be legitimate, and its rationale for its treatment of different classes must be substantially significant. Lastly we have strict scrutiny, if a state’s treatment of a class of people is based on race or if it burdens the fundamental rights of a class of people, it must prove a compelling state interest in which there is no lesser form of differential treatment available to achieve the goal of the state’s compelling interest (Harpaz, 2010).

In sum, the Fourteenth Amendment was created primarily to protect the rights set out in the Bill of Rights from state encroachment via the Privileges or Immunities clause. However, the Supreme Court stripped the Privileges or Immunities clause of any real meaning in the Slaughterhouse Cases (1873) thus rendering the clause pretty much useless. Consequently, the court developed the Due Process and Equal Protection Clauses to effectively serve in place of the Privileges or Immunities Clause. The court did so in order to incorporate the Bill of Rights and apply them to the states (Alito, 2010).

In the McDonald case the petitioners argued that the right identified in Heller should be incorporated under the Privileges or Immunities Clause and applied to the states. The Supreme Court rejected their argument but did incorporate the Heller right under the Due Process Clause (Alito, 2010). What is interesting though is that even if the petitioner’s Privileges or Immunities argument had been accepted by the court, there really would not be much of a difference in the level of protection of the right.

Even if the Heller right was incorporated under the Privileges or Immunities Clause it would still trigger strict scrutiny when addressing a state action. The right identified in Heller was officially labeled as a fundamental right and therefore any state law or action faces strict scrutiny when it clashes with this fundamental right. The next section will look at the implications and possible consequences resulting from the courts holding in McDonald.

Aftermath of Heller and McDonald and their Implications

The question on most people’s minds following these two cases is what affect did the rulings of the court have on D.C and Chicago’s crime rates? In D.C. “From 2008-2010 homicides dropped -35%. Robbery with a gun -10.3%. Assault with a gun, -24.1%. Total violent crime -9.5%” (Lott, 2011)

In Chicago from “Jan-Jun 2010 and Jan-Jun 2011, murder, -14%. Robbery -3.8%. Aggravated assault and aggravated battery combined, -27.3%. Total violent crime, -8.8%” (Lott, 2011). Although the national crime rates have been dropping for years, D.C. and Chicago’s rates have surpassed it. Accordingly the notion of more guns less crime may actually have some substance to it.

Soon after the McDonald opinion was read there was a flood of challenges against federal, state, and local gun laws and regulations. One example is the case of United States v. Skoien (2010). The challengers brought suit claiming that the federal law barring gun ownership by people convicted of domestic violence charges was a violation of their Second Amendment right to bear arms. The 3 judge panel of the 7^th Circuit Court of Appeals held the law to in fact be unconstitutional in violation of his Second Amendment right to bear arms. However, on appeal to the full 7^th Circuit Court of Appeals the court upheld the law. In its opinion the court stated that it applied intermediate scrutiny when reviewing the law (Vernick, Rutkow, Webster, Teret, 2011). Looking back to the previous section of this paper we know that intermediate scrutiny only requires that a state law be substantially related to an important governmental interest. Had the court applied strict scrutiny to the law the outcome may have been different.

What makes this case even more interesting is the fact that the court relied heavily on the findings of research regarding a few topics: the relationship between domestic violence and firearms, recidivism among domestic abusers, and the risk of guns in their homes (Vernick et al, 2011). The majority in the McDonald case held that when addressing constitutional issues, the court does not base its ruling on statistics. However, in his dissenting opinion Justice Breyer argued the exact opposite in regards to Second Amendment issues.

He states “This is a highly statistical matter. Without incorporation it’s decided by legislatures, with incorporation it’s decided by judges” (Oyez, 2009). A few moments later during oral arguments Justice Breyer goes on to say “There is always a big area where its free speech versus a whole lot of things, but not often is it free speech versus life. When it’s free speech versus life, we very often decide in favor of life. Here every case will be one side guns on the other side life. Statistics, balancing life versus guns” (Oyez, 2009). Apparently the 7th Circuit Court of Appeals agreed with Justice Breyer’s argument that statistics must be considered.

In both the Heller and McDonald cases one of the most common criticisms of both cases are their lack of providing adequate guidance to lower courts in regards to what standard of review should be used. Obviously as just shown above, lower courts are unsure of how to weigh the right to bear arms with a state’s compelling interest. Consequently, we can most likely expect to see significant divergence among courts and their approaches to Second Amendment cases. In other words, due to a lack of guidance from the Supreme Court, one court may hold a law unconstitutional and another court may hold a similar law constitutional.

The Supreme Courts holding in both Heller and McDonald also failed to address and provide guidance for a number of important questions. Justice Breyer mentions eight questions that lower courts are now expected to answer with no guidance from the Supreme Court. His eight questions are:

1. Should the Second Amendment apply outside the home, the car, or at work?

2. What types of guns are allowed or considered ok for self-defense?

3. Does the time of day, place, or manner matter?

4. Does the presence of a child or convicted felon in the house matter?

5. Are special rules now needed for police and how they can pat down in search of a gun?

6. When do registration requirements become severe to the point that they among to an unconstitutional ban?

7. Who can possess guns?

8. How would the right interact with a state’s ability to take appropriate measures during a national security emergency?

These are all valid questions that courts are eventually going to be faced with (Blackman, 2011, p.986). In the article by Vernick he suggests that social researchers need to be ready to help courts in answering these questions. Furthermore, he mentions that researchers also need to be prepared to assist legislators in creating laws that will not violate the Constitution (Vernick et al, 2011).

Make no mistake; Indiana is not exempt from the implications of the Heller and McDonald cases. In 2011 Indiana enacted a law that prohibits employers from prohibiting their employees from keeping a lawfully owned firearm unloaded and locked in their vehicle while at work. Also in 2011 Indiana passed a law that prohibits local governments in from enacting any type of firearm regulation that is not mentioned in the Indiana Code. In other words Indiana’s General Assembly wanted to establish uniform firearm laws throughout all parts of the state. Therefore, unless it’s already in the Indiana Code, a city may not pass a more restrictive firearm regulation (Bischoff, 2010).

The Supreme Court handed down two landmark decisions nearly back to back. The court identified a new right for an individual to bear arms in their home for self-defense. Furthermore, the court defined that right as being fundamental, thus warranting incorporation and application to the states under the Due Process Clause. However, the Supreme Court clearly created more questions and issues than it answered. At this very moment there are numerous cases making their way through the judicial system and it is very likely that a few of these will be heard by the Supreme Court in the near future. One such case is Britt v. State (2009), in which North Carolina became the first state in the country to hold that a law criminalizing an ex-felon from possessing a firearm to be a violation of their Second Amendment right and therefore is unconstitutional (Bone, 2010).

Conclusion

Until the Supreme Court hears and rules on more Second Amendment cases, it appears for now, that judges, legislatures, and citizens are going to have to simply deal with the implications and confusion left in the aftermath of Heller and McDonald. However, if D.C. and Chicago continue to see decreases in their violent crime rates, perhaps dealing with the implications will not be so bad for those following suit. Despite the numerous uncertainties regarding the right itself, one thing is certain. When creating laws and analyzing cases, Judges and legislators are now going to have to take into consideration empirical research when balancing life vs. guns, and they must exercise extreme caution and scrutiny in doing so. A failure to do so may result in catastrophic consequences.

References

Alito, S. (2010). Opinion of McDonald v. City of Chicago (United States of America, United States Supreme Court). Washington D.C.: United States Reports.

Bischoff. (2010, January 26). House Bill No. 1065 (The United States of America, Indiana General Assembly, House of Representatives).

Blackman, J. (2011). The constitutionality of social cost. Harvard Journal of Law & Public Policy, 34(4), 951-1042.

Bone, D. (2010). The Heller promise versus the Heller reality: Will statutes prohibiting the possession of firearms by ex-felons be upheld after Britt v. State? Journal of Criminal Law & Criminology, 100(4), 1633-1658.

Geller, M. (2007). Substantive Due Process [Scholarly project]. In National Paralegal College.

Geller, M. (2008). History of Equal Protection and the Levels of Review [Scholarly project]. In National Paralegal College.

Harpaz, L. (2010). Standards of review. Western New England University School of Law, Springfield, Massachusetts.

Hass, S. (2006). Procedural Due Process [Scholarly project]. In National Paralegal College.

Lott, J. (2011, September 30). Media silence is deafening about important gun news. Fox News

Miller, D. H. (2009). Guns as smut: Defending the home-bound Second Amendment. Columbia Law Review, 109(6), 1278-1356.

Nieto, M. (2011). The changing landscape of firearm legislation in the wake of McDonald v. City of Chicago, 130 S. CT. 3020 (2010). Harvard Journal of Law & Public Policy, 34(3), 1117-1130.

Oyez, P. (Producer). (2009). McDonald v. City of Chicago. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2009/2009_08_1521

Rosenthal, L., & Malcolm, J. (2011). McDonald v. Chicago: Which standard of scrutiny should apply to gun control laws?. Northwestern University Law Review, 105(1), 437-466.

Sandefur, T. (2010). Privileges, immunities, and substantive due process. New York University Journal of Law & Liberty, 5(115), 115-172.

Scalia, A. (2008, June 26). Opinion of District of Columbia v. Heller (United States of America, The United States Supreme Court, United States Reports).

Thomas, G. (2010). Who’s afraid of original meaning? Policy Review, (164), 75-93.

U.S. Const., amend. XIV, § 1. The United States Constitution (United States of America, The U.S. National Archives, Records Administration).

Vernick, J. S., Rutkow, L, Webster, D. W., & Teret, S. P. (2011). Changing the constitutional landscape for firearms: The U.S. Supreme Court’s recent Second Amendment decisions. American Journal of Public Health, 101(11), 2021-2026.

Volokh, E. (2010) Sources on the second amendment and rights to keep arms in state constitutions. Law School, University of California Los Angeles, California.

Firearms and the Supreme Court

2013-01-20T12:44:00.002-08:00

Introduction

During oral arguments in the case of McDonald v. City of Chicago (2010), Justice Scalia mentions something very interesting that you should keep in mind while reading this paper. He said “If there’s a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states” (Scalia, 2008 Audio). In fact that is what he did in writing for the majority in District of Columbia v. Heller (2008). From 2008 until 2010 the court examined, defined, incorporated, and applied to the states the protection of an individual’s right to possess a firearm in their home for private self-defense.

Certainly one may view these as extraordinary accomplishments, but as with every other judicial ruling there are vast number critics. Many scholars argue that both rulings have essentially left judges, legislators, and citizens with more questions than answers. Moreover, they argue that the court failed to provide any guidance to as what the proper standard of review to be utilized when dealing with the new right found in Heller. I disagree with those claiming the Supreme Court failed to provide guidance to lower courts regarding the proper standard of review. Rather, the guidance they claim is lacking can clearly be found in both of the written majority opinions.

District of Columbia v. Heller (2008)

Until the 2001 in case of United States v. Emerson (2001) the Second Amendment was viewed as being a collective right in connection with militia service. The Emerson case was the first to hold that the Second Amendment held an individual right rather than just a collective right. This ruling may very well have sparked the fire within gun advocates and other around the country and eventually take them to the Supreme Court in 2008 (Doherty, 2008).

In June 2008 the United States Supreme Court performed its first thorough and in-depth examination into the meaning of the Second Amendment. In the case of District of Columbia v. Heller (2008), Justice Scalia wrote the majority opinion and he held that the Second Amendment protects an individual’s right to possess a firearm in their home for self-defense (Scalia, 2008). Washington D.C. arguably had the most restrictive regulations on handguns in the country. Handgun possession is banned under District of Columbia law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business (Scalia, 2008).

Respondent Heller was a D.C special police officer and authorized to carry a handgun while on duty. When Heller applied for a registration certificate that would allow him to keep a handgun in his home, he was denied. There were 3 provisions of the Districts handgun ban challenged in this case. However, after reading and listening to the oral arguments and opinions, it seems clear that the primary goal of the court was to examine the meaning of the Second Amendment and determine whether or not there were any rights protected by it. The District Court dismissed Heller’s complaint. The Court of Appeals for the District of Columbia Circuit reversed and directed the District Court to enter summary judgment in favor of the District of Columbia. The Court of Appeals construed Heller’s complaint as seeking the right to render a firearm operable and carry it in his home only when necessary for self-defense, and held that the total ban on handguns violated the individual right to possess firearms under the Second Amendment. The Supreme Court granted certiorari (Scalia, 2008).

Scalia delivers an overwhelming 64 page historical analysis of every word in the amendment. Due to page limit restrictions I will give the main points as concisely as possible. The right of the people to bear arms pre-existed the creation of the constitution therefore it seems clear that the right was very important, possibly even fundamental to the framers. The prefatory clause is militia related but that does not limit the operative clause (Scalia, 2008).

Historically, the primary way kings and tyrants would suppress any opposition to their rule was to disband the peoples militia and also take their firearms. Consequently, since congress funds our militia and could therefore take away their firearms, the right of the people to keep and bear arms shall not be infringed. In other words the right refers to an individual right as in the citizens as opposed to a collective right. Scalia also stated “This right is not unlimited. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, mentally ill, or laws forbidding the carrying of firearms in sensitive places” (Scalia, 2008).

Justice Stevens and Justice Breyer each wrote dissenting opinions and they both joined each other’s opinion. In Justice Stevens dissent the most notable problem he had with the majority’s opinion was that it threw the court right into the middle of a debate that has historically been subject to the political process. Moreover, he argued that the political process is far better at dealing with these issues, but now the court has stepped in and essentially taken on the role of a legislature creating a new law (Card, 2009). In his lengthy dissenting opinion, Justice Breyer primarily argues that the court should develop an interest balancing test. His test would basically be the equivalent of the level intermediate scrutiny that the court already uses. However, he suggests that we should give more deference to the legislature in Second Amendment challenges (Card, 2009).

Controversy over Scalia’s opinion began the day it was announced. The first claim of their individual right to possess a handgun after the ruling in Heller, came in the case of United States v. McCane (2009). In this case McCane was arrested for driving with a suspended license and after a search of his vehicle turned up a .25 caliber pistol, he was also charged with being a felon in possession of a firearm. He was found guilty by the trial court but while awaiting appeal The Supreme Court issued its opinion in the Heller case. During his appeal he claimed that he now had a right to possess the pistol found in his car, but the appeals court upheld his conviction. However, the court did struggle with defining what prohibitions are considered “longstanding” and therefore valid as per Heller. The court eventually moved on stating that since McCane was a multiple felon the new right would not be enjoyed by him (Mouritsen, 2010).

Otis McDonald and His Journey to the U.S. Supreme Court

Otis McDonald was born in Louisiana in 1934. His parents were both sharecroppers that worked hard to instill a strong work ethic and a sense of pride in their son. In 1951, during the heart of the Great Migration, in which millions of African American’s moved from Southern states to Northern states, Otis asked his mother for $18 so that he could make his way North. Eventually he settled down in Chicago where he went to work as a janitor for the University of Chicago where he retired as a father of 8 in 1997(Mastony, 2010)

In 2008, after his successful argument in the case of District of Columbia v. Heller (2008), attorney Alan Gura set his sights on Chicago and its strict handgun ban that closely resembled the ban Washington D.C. formally had. Gura established connections with 12 Chicago residents and proceeded to interview them over the phone and email. He finally narrowed the field down to 4 people in which he would represent in a future lawsuit. The 4 were Adam Orlov who was a partner in a trading firm. David Lawson, a white software engineer. Colleen Lawson, the wife of David Lawson, she was a hypnotherapist. Lastly, there was Otis McDonald, a black janitor (Mastony, 2010).

McDonald’s concern over Chicago’s push for a widespread handgun ban led him to begin attending pro-gun rallies in 2005. As he became more involved in the rallies, he caught the attention of Valinda Rowe. Rowe was one of the leading activists, and upon hearing that Gura was looking for potential plaintiffs to challenge the city’s ban, she gave Gura McDonald’s phone number. Eventually Gura flew to Chicago to meet with the 4 people he selected and decided that McDonald would be the lead plaintiff, thus creating McDonald v. City of Chicago (2010). At one point during their meeting McDonald said “Why would you name it after me? Is it just because I’m the only black” (Mastony, 2010)? Although he was only joking when he said that, it would end up playing an interesting role in Gura’s development of his argument.

McDonald had firsthand experience when it came to being a victim of the widespread crime wave that took place in his neighborhood. His house was burglarized three times in 1980’s and 1990’s. More recently a couple of teenagers had surrounded his car while pointing a gun in his face and making death threats. That was the last straw for McDonald. Soon after in 2008 he went to the Chicago Police Department where he applied for a .22- caliber pistol and thus setting the lawsuit into motion (Mastony, 2010).

McDonald v. City of Chicago (2010)

This litigation began when Chicago residents brought suit challenging local ordinances that essentially banned all handgun possession by anyone in the city. Specifically, the petitioner Otis McDonald sought a permit to purchase a handgun to be kept in his home for safety, but his application was denied. Soon thereafter McDonald and 3 other petitioners filed suit against Chicago’s handgun ban. The district court dismissed the suits and the U.S. Court of Appeals for the Seventh Circuit affirmed (Mastony, 2010). Upon the granting of certiorari by the U.S. Supreme Court, the McDonald case was joined by a similar case involving the NRA in which Attorney Paul Clement represented. The Supreme Court combined the two and allowed 15 minutes for both McDonald and the NRA during oral arguments. James A. Feldman was hired to represent the City of Chicago.

The main questioned presented in this case is whether or not the right identified in the Heller should be incorporated under the Fourteenth Amendment thus making it applicable to the states. Moreover, it would also provide protection from infringement by state actions. Shockingly, Mr. Gura on behalf of the petitioners argued that the right found in Heller is one of the privileges or immunities of national citizenship and therefore should be incorporated via the Privileges or Immunities Clause of the Fourteenth Amendment. On the other hand, Mr. Clement on behalf of the NRA argued that the right should be classified as a fundamental right and incorporated via the Due Process Clause of the Fourteenth Amendment. Mr. Feldman, representing Chicago, maintained that the city’s handgun ban was necessary to save human lives. For years Chicago claimed that the total ban of handguns within city limits had saved hundreds of live. Furthermore, Chicago claimed that its banning of handguns was a proper exercise of its police powers to protect its citizens.

In a 5-4 decision the Supreme Court reversed the Seventh Circuit’s ruling. Justice Alito wrote the majority opinion holding that “Rights found to be fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court restated that the right found in Heller was deemed to be "fundamental" and "deeply rooted” (Alito, 2010). Moreover, the court rejected the argument made by McDonald and instead incorporated the Second Amendment under the Due Process Clause.

Justice Stevens wrote a dissenting opinion and Justice Breyer wrote a separate dissenting opinion in which justices Ginsburg and Sotomayor joined. The first of four points Justice Breyer argues is that the fear of the federal government taking away the arms of the militia was the reason the Second Amendment was codified. He then mentions that there is no consensus in America that the possession of a firearm for self-defense is a fundamental right. Thirdly, he looks at the other rights that have been incorporated and argues that unlike those rights, the right to possess a firearm for self-defense does not advance any constitutional objective (Oyez, 2009).

Specifically, he states the constitutions objective to protect the rights of a minority against acts of a majority, such as the First, Fourth, and Eighth Amendments effectively do. Lastly he argues that there is a substantial reason to believe that the incorporation of this right will drastically interfere with the constitutional objectives of courts and legislatures and the states to the federal government. Essentially he claimed that states have already established extensive laws and regulations regarding firearms and by incorporating this new right, all such laws and regulations are now subject to constitutional challenges. Furthermore, he asks how federally appointed judges compared to elected representatives are better suited to answer all of the questions that are sure to arise (Oyez, 2009).

Aftermath & Implications of Heller & McDonald

The first question that came to my mind after studying these cases is whether or not the rate of crimes involving handguns increased or decreased in D.C. and Chicago after their handgun bans were struck down. I researched this very question extensively and only found one article with any sort of answer which I find as shocking as the results I found. According to John Lott, who hold a Ph.D. in economics with focus on research in law and economics the crime rates for Washington D.C. and Chicago after their handgun bans were struck down are as follows (Lott, 2011)

Crime rates for Washington D.C.

· Homicides from 2008-2012 dropped -35%

· Robbery with a gun dropped -10.3%

· Assault with a gun dropped -24.1%

· Total violent crime dropped -9.5%

Crime rates for the City of Chicago from Jan-Jun 2010 and Jan-Jun 2011:

· Murder dropped -14%

· Robbery dropped -3.8%

· Aggravated assault and aggravated battery combined dropped -27.3%

· Total violent crime dropped -8.8% (Lott, 2011)

Although the national crime rates have been dropping for years, D.C. and Chicago’s rates have surpassed it. Accordingly the notion of more guns less crime may actually have some substance to it.

What makes this case even more interesting is the fact that the court relied heavily on research regarding a few topics: the relationship between domestic violence and firearms, recidivism among domestic abusers, and the risk of guns in their homes. (Vernick, 2011) The majority in the McDonald case held that when addressing constitutional issues, the court does not base its ruling on statistics. However, in his dissenting opinion Justice Breyer argued the exact opposite in regards to Second Amendment issues.

Another case directly stemming from the Heller and McDonald rulings is Britt v. State (2009) in which North Carolina became the first state in the country to hold that a law criminalizing an ex-felon from possessing a firearm to be a violation of their Second Amendment right and therefore is unconstitutional. In 1979 Britt was convicted of felony possession with intent to sell and deliver a controlled substance. He completed his sentence and was released in 1982 and his civil rights were restored in 1987. The law in 1987 allowed for Britt to purchase certain firearms, and he did purchase some firearms such as sporting rifles and shotguns. However, in 2004, North Carolina passed a law making it illegal for anyone who has been convicted of a felony to possess any sort of firearm (Bone, 2010).

Britt voluntarily turned in his firearms and then filed a suit alleging that the new law violated his right to bear arms. Moreover, Britt had not been charged with any crime in the 30 years since his first and only felony conviction. The trial court held the law was rationally related to a legitimate state interest and therefore valid and the court of Appeals affirmed. However, on appeal to the North Carolina Supreme Court, the court found the law unconstitutional as it applied to Britt because the state could not imply that Britt possessed a significant threat to public safety (Bone, 2010).

After the Britt case, the North Carolina Court of Appeals developed and implemented a 5 factor test in order to determine whether the statute is a “reasonable regulation which is fairly related to the preservation of public peace and safety” (Bone, 2010).

1. The type of felony convictions, particularly whether they involved violence or the threat of violence.

2. The remoteness in time of the felony convictions

3. The felon’s history of law-abiding conduct since the crime

4. The felons history of responsible lawful firearm possession during a time period when possession of firearms was not prohibited

5. The felon’s assiduous and proactive compliance with the 2004 amendment

Indiana is not exempt from the implications of the Heller and McDonald cases. In 2011 Indiana enacted a law that prohibits employers from prohibiting their employees from keeping a lawfully owned firearm unloaded and locked in their vehicle while at work. Also in 2011 Indiana passed a law that prohibits local governments in from enacting any type of firearm regulation that is not mentioned in the Indiana Code. In other words Indiana’s General Assembly wanted to establish uniform firearm laws throughout all parts of the state. Therefore, unless it’s already in the Indiana Code, a city may not pass a more restrictive firearm regulation (Bischoff, 2010).

Misconceptions of the Heller and McDonald rulings

In conducting research for this paper I have easily read over 500 printed pages on this subject matter. From law reviews and legal journals to scholarly peer reviewed articles and Supreme Court audio recordings, not to mention an unknown amount of online articles. As a result I would like to think that I have developed at least a very basic understanding of these two cases and their implications to our society. Most of the articles I read were very critical of the Supreme Court’s rulings in both cases. There are numerous issues scholars have found in the court’s rulings; but the most common issue mentioned by nearly every article I read was that the court failed to offer any guidance to lower courts in regards to what the proper standard of review should be for this new right.

Many scholars blast the court because in its failing to provide a clear standard of review the court has created a great divergence among state and federal courts. Specifically, as to the proper way they should address the flood of Second Amendment violation claims currently being made. As Justice Breyer argues in his dissent, which is now joined with many in the academic community, nearly all state and federal regulations and prohibition’s regarding firearms are now subject to constitutional challenge. Furthermore, empirical evidence must be considered when comparing a state’s interests vs. an individual’s right to possess a handgun; and that the political process in state legislatures and in Congress are better equipped to answer such questions.

The argument I kept coming across goes on to ask what level of scrutiny should be applied. For example should rational basis be enough? Should intermediate scrutiny be used in this case? What about strict scrutiny in this circumstance? As I progressed in my research my pro-gun stance remained intact but my objective analysis of the issues gave way to Justice Beyer’s argument. It just made sense to me that a single judge, a panel of judges, and even the Supreme Court is not where we should be looking for answers to all the questions that are now presented. Rather, I agree with Justice Breyer that legislatures have the tools to conduct research, analyze their findings, and pass appropriate legislation in accordance with such findings.

Just when I thought I had settled on my theme and format of this paper it hit me. The U.S. Supreme Court did give proper guidance to lower courts. In fact the guidance and the answers to all of the questions about who can possess handguns, where, and what type were answered by Justice Scalia’s opinion in Heller and then passed on to the states in McDonald. What sparked this revolution in my head was an article claiming that originalism is dying and Justice Scalia’s 64 page opinion is proof that his approach to constitutional interpretation is nearly obsolete. The author claims that Justice Scalia’s opinion is so lengthy because he is desperately trying to prove that originalism and textualism together are the best ways to interpret the constitution.

After reading the article I read the opinions in both cases and I also listened to the oral arguments and opinions for the 50^th time. During oral arguments in the McDonald case Justice Scalia says “If there’s a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states” (Scalia, 2008 Audio). Having that been said, if you read the majority’s opinion in Heller, Justice Scalia is doing exactly what he said above.

We must remember that the Heller case was the courts first full examination of the Second Amendment. Therefore, Justice Scalia thoroughly looked at all parts of the Amendment and found that the minimum right protected is an individual’s right to possess a handgun in their home for lawful purposes. Moreover, the court held that the right is not unlimited and that longstanding regulations regarding who may purchase or carry a handgun, restrictions on where a person may possess a handgun are presumptively valid so long as a law, regulation, or prohibition does not totally ban all handguns and does not restrict law abiding citizens from purchasing one and keeping it in their home for lawful purposes.

The court in the McDonald case applied the right identified by Justice Scalia’s opinion in its entirety to the states. In other words, all law, regulations, and prohibitions that were in place prior to the Heller ruling are still lawful; so long as they do not totally ban all handguns and prohibit lawful citizens from possessing a handgun in their home for lawful purposes. Therefore, all the articles by highly respected scholars and lawyers that I read criticizing the court for not allowing state legislatures to regulate handgun possession; and for not providing the courts with any guidance to answer questions of who, where, what type and handgun, and what standard of scrutiny should be used, are wrong in their criticism. States may do everything they did prior to Heller and McDonald except for what I mentioned above and that really is not much. It seems to me that most scholars view these two cases as creating a narrow right with no definition, but in reality the court simply found the minimum constitutional right and clearly stated that everything above that is up to the states.

What I find most troubling about is that people are looking to the U.S. Constitution to solve all their problems and they expect the constitution to provide answers to every question they have. In doing so they are changing the constitution into something it was never meant to be. They are essentially changing the constitution into a document that is expected to keep up with our current society and reflect our societal views. That type of constitution is not what our founding fathers sought to create. Rather, keeping up with society and reflecting our current society’s views is precisely the job of Congress and our state legislatures.

In nearly every article I read that attacking the Supreme Court, I rarely found any mention about their state constitutions. After all most state constitutions provide greater protections of citizens’ rights than does the U.S. Constitution. Therefore, if they people would rather look to a constitution to reflect their current values, they should first look at their own state constitution. In regards to an individual’s right to bear arms, state constitution’s often times provide a significantly greater level of protection compared to the U.S. Constitution.

Indiana’s Constitution provides “The people shall have the right to bear arms, for the defense of themselves and the State.” Maine’s Constitution says “Every citizen has a right to keep and bear arms and this right shall never be questioned.” Alabama’s Constitution says “That every citizen has a right to bear arms in defense of himself and the state.” Delaware’s Constitution provides “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Louisiana’s Constitution states “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person” (Volokh, 2006). Only six states fail to enumerate a right to keep and bear arms, California, Iowa, Maryland, Minnesota, New Jersey, and New York (Volokh, 2006).

Conclusion

The U.S. Supreme Court’s rulings in Heller and McDonald can easily been labeled as historical landmark decision’s, but it appears that there are a lot of citizens and scholars that view the decisions as being much more significant than they really are. The court’s decision in Heller was its first examination of the Second Amendment and it effectively did what it was supposed to do. That being that it identified the minimum constitutionally protected right and left everything above that right up to the states via the McDonald case. If we wish to preserve our constitution that has lasted hundreds of years, we must not look to it for answers to every single issue that develops in our society. Furthermore, judges must be cautious when taking an approach to constitutional interpretation that weighs a right or a statue against what they think may happen.

For example instead of looking at the plain text and what the Second Amendment originally meant to the people who drafted it, Justice Breyer took on the role of a sociologist and relied on statistics as the bases for his opinion. Consequently, as shown above, the handgun ban may have very well increased crime rates in D.C. and Chicago, or at the very least significantly slowed their drop in crime rates. Certainly all methods of constitutional interpretation should be made available depending on the case, but when dealing with an issue that is spelled out in the constitution the easiest and most appropriate method is originalism and textualism. Lastly, state governments, state courts, and federal courts need to stop reading into Heller and McDonald for anything more than what they say. Rather, they need to follow the North Carolina Court of Appeals lead and develop whatever tests they deem appropriate.

References

Alito, S. (2010). Opinion of McDonald v. City of Chicago (United States of America, United States Supreme Court). Washington D.C.: United States Reports.

Bischoff. (2010, January 26). House Bill No. 1065 (The United States of America, Indiana General Assembly, House of Representatives).

Card, R. L. (2009). An opinion without standards: The Supreme Court’s refusal to adopt a standard of constitutional review in District of Columbia v. Heller will likely cause headaches for future judicial review of gun-control regulations. BYU Journal of Public Law, 23(2), 259-287.

Doherty, B. (2008). Gun control on trial: Inside the Supreme Court battle over the second amendment. (pp. 19-29). Washington, D.C.: Cato Institute.

Lott, J. (2011, September 22). [Web log message]. Retrieved from http://johnrlott.blogspot.com/2011/08/so-what-happened-to-chicagos-murder-and.html

Mastony, C. (2010, January 30). The public face of gun rights: This is Otis McDonald. Chicago Tribune

Mouritsen, S. C. (2010). United States v. McCane: Judge Tymkovich questions Heller’s disarming dicta. BYU Law Review, 2010(1), 183-197.

Oyez, P. (Producer). (2009). McDonald v. City of Chicago. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2009/2009_08_1521

Scalia, A. (2008, June 26). Opinion of District of Columbia v. Heller (United States of America, The United States Supreme Court, United States Reports).

Scalia, A. (Producer). (2008). District of Columbia v. Heller. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2007/2007_07_290

Volokh, E. (2006). State constitutional rights to keep and bear arms. Texas Review of Law & Politics, 11(1), 192-216.

Gay Marriage

2013-01-20T12:42:00.002-08:00

On the topic of gay marriage, before last night I did not really have an opinion either way. I, like many others, view marriage as the ultimate showing of commitment. I never really thought about any underlying purposes that existed. However, last night in my Indiana Constitutional law class we had a very interesting discussion about Morrison v. Sadler (Ind.App.200) which basically addressed the question of: “does the Indiana Constitution contain a core value (fundamental right) for same sex couples to marry?” The court decided that they did NOT have a protected right as it currently stands but the legislature is free to change that if it wishes. After reading and discussing the courts rationale I thought about marriage from a completely different view point, I now have an opinion.

I will try to give the main points as concisely as I can. The court said the key question to be answered is: “whether the recognition of same-sex marriage would promote all of the same state interests the opposite-sex marriage does, including the interest in marital procreation. If it would not, limiting same-sex marriage is rational and acceptable.” They court also said that same-sex couples that become parents by artificial reproduction methods have invested so much time, money, and emotions. Furthermore, they planned and could foresee becoming parents. Given that the states’ interest is that children be raised in a stable environment. the time, effort, commitment, emotions, and expenses invested by same-sex couples to adopt or conceive a child, suggests that they may be fully capable in providing that stable environment WITH OUT THE PROTECTIONS OF MARRIAGE.

“The institution of marriage not only encourages oppo-sex couples to form a stable environment for the natural procreation of a child, but it also encourages them to stay together and raise a child together if there is a change in plans.” “Marriage encourages oppo-sex couples to remain in such a relationship if a child arrives unexpectedly.” The court also said that “the State could reasonably decide that by encouraging oppo-sex couples to marry, thereby assuming legal and financial obligations, the children born from such a relationship will have better opportunities to be nurtured and raised by two parents within long term, committed relationships, which society has viewed as advantageous for children.”

Because same-sex couples cannot procreate, allowing them to marry will do little to advance that State’s goal of responsible procreation within long term, committed relationships. There was much more said but that’s a basic summary. The court concluded that it was not for them to decide who is allowed to marry; rather it is up to the legislature to decide. Therefore since same sex-couples clearly devote a great deal of time, emotions, and a high level of commitment, they do not need the encouragement to do so that marriage attempts to promote to oppo-sex couples.

Gun Rights Rant

2013-01-20T12:41:00.001-08:00

Over the past couple months the number of stories dealing with gun rights has increased on the Courier’s website. These stories have sparked heated discussions about the legality and the morality of gun rights. A majority of the comments sent between the people posting on the site deal with the morality of gun rights. I have seen very few comments that take the legal approach to this debate. Whether carrying a gun is moral or not will be debated forever. If we are not willing to look at the laws of our state and country and base our discussions about the morality of carrying around those laws, then we are just going in circles. The following is a legalistic approach to this debate.

I am not going to address the 2^nd amendment or its applicability to the state under substantive due process under the 14^th amendment. If someone wishes to learn about that they should read D.C. v. Heller and McDonald v. Chicago.

While the 2^nd amendment is fairly ambiguous in its intentions, Article 1 Section 32 of the IN Const. is not. It states “The people shall have a right to bear arms, for the defense of themselves and the State.” Although it is clear that Hoosiers have the right to bear arms for self defense in their homes, our state has created restrictions and regulations on that right in regards to bearing arms in public and the issuing of a permit to carrying a gun outside of the home. In this case the issue is whether a person with a lawful permit to carry may do so on a college campus. In addressing this we must first look at the locations that a person is prohibited from carrying a gun as stated in the law.

            IC 25-47-9-2 states “Possession of firearms on school property, at school function, or on school bus; felony
     Sec. 2. A person who possesses a firearm:
        (1) in or on school property;
        (2) in or on property that is being used by a school for a school function; or
        (3) on a school bus;
commits a Class D felony.”

I am not a lawyer but it seems to me that the obvious question one should have after reading that is “is a college or university considered a school? How does Indiana define school?” According to IC 20-18-2 a high school is defined as “High school means any combination of grades 9, 10, 11, or 12.” IC 20-18-2 also defines an elementary school “Elementary school means any combination of kindergarten and grades 1, 2, 3, 4, 5, 6, 7, or 8.”

IC 21-7-13-10 defines colleges and universities. In short a college or university is considered to be a “post secondary educational institution.” Unless there is somewhere in the Indiana Code that defines colleges and universities in a different way, I understand Purdue and USI to be “post secondary educational institutions.” Therefore colleges and universities are not considered to be “schools” and leads me to the conclusion that IC 25-47-9-2 (the law that prohibits a person from possessing a gun on school property) does NOT apply to universities or colleges.

            In the case dealing with Purdue, I suspect the students petitioned for permission to carry a gun on campus to the student government because that was the first link in the chain in their hopes of reaching the university’ s board of trustees. IC 21-39-2-3 states “Authority to govern by lawful means
     Sec. 3. (a) This section applies to the board of trustees of the following state educational institutions:
        (1) Ball State University.
        (2) Indiana University.
        (3) Indiana State University.
        (4) Purdue University.
        (5) University of Southern Indiana.
    (b) The board of trustees of a state educational institution may govern, by lawful means, the conduct of the state educational institution's students, faculty, and employees, wherever the conduct might occur, to prevent unlawful or objectionable acts that:
        (1) seriously threaten the ability of the state educational institution to maintain the state educational institution's facilities; or
        (2) violate the reasonable rules and standards of the state educational institution designed to protect the academic community from unlawful conduct or conduct presenting a serious threat to person or property of the academic community.

I understand the above to mean that the board of trustees has broad power and authority in creating rules and regulations that they have deemed would best serve the interests of the university. A new state law that was passed in 2011 prohibits local governments from creating firearm regulations that are separate (and often more restrictive) from the regulations in the State Code. Since the Indiana Code gives the board of trustees the authority to create rules and regulations for their respective universities, Purdue’s board of trustees are well within their lawful authority to allow or prohibit the carrying of guns on campus.

Now a brief review, the Indiana Const. states a person has the right to bear arms for self defense and our State legislature has taken that to mean a person can have a gun on their property, but we (the legislature) may regulate the bearing of arms in public and in specific places. The Indiana Code dealing with the regulation of firearms, prohibits the possession of a firearm on school property. However, colleges and universities are not defined as being schools. Therefore, that regulation does not apply to them. The Indiana Code dealing with the power and authority granted to the board of trustees at colleges and universities allows the board to create rules and regulations that they have determined to be best for the university. The law passed in 2011 unifies the entire state under the Indiana Code by prohibiting local governments from creating the own regulations not mentioned in the Indiana Code.

So now that we are somewhat familiar with Indiana’s laws concerning the regulation of firearms, I can make my argument. I have a permit to carry a firearm and I do nearly every time I leave home. However, I am also a student and employee at the University of Southern Indiana. Therefore, I cannot carry my gun Monday through Friday since I am on campus for class and work most of the day. While I strongly believe in the right to bear arms, I also believe in regulating who may carry. However, I am against any potential state regulation or rule created by a board of trustees that prevents me from carrying in certain areas. In the case of Lacy v. State in 2009, the ruling of the court was that the right to bear arms is a core fundamental value (right) in Indiana. Moreover, any law or regulation that places a substantial material burden on the right to bear arms ,giving that the person may lawful carry a gun, is unconstitutional.

The court defined a substantial material burden as being a law or regulation that prevents a fundamental right from effectively serving the purpose in which the right was created. In this case the right is to bear arms for self defense. In my opinion, USI’s rule that prevents firearms on campus (even in someone’s vehicle in the parking lot) places a substantial material burden on my right to bear arms. I drive 48 miles every day (24 to class/work and 24 home) and my vehicle gets 210 miles with a full tank of gas. I often leave campus for lunch and to run errands in between classes and work, if I wanted to exercise my right to bear arms I would have to drive all the way home to get my gun, and if I did get my gun, I would have to take it back to my house before going back to campus. Essentially I cannot exercise my right to bear arms 5 out of the 7 days in a week.

I do not think it is unreasonable to allow me to keep my gun locked up in my vehicle while on campus. Do you? That being said even if USI allowed me to carry my gun while on campus, I would not take it to class with me. I think it would be annoying to have on my hip while sitting in a small desk in class. Not to mention the drama it would cause if other students saw it. I am just trying to graduate and go to work. A complete ban of guns on campus is unconstitutional and unreasonable. The issue of carrying a gun from class to class is not an issue I choose to address because I personally wouldn't choose to do so. In conclusion, if someone wants to shoot up a college campus, a rule created by a board of trustees, or even a state law would not stop them from trying to kill people. We need to ensure our regulations dealing with who may lawfully carry are effectively achieving their goal.