The "English Only" Movement Needs To Take A Good Look At The Law Books

Because it's been completely infiltrated with foreigners. The English Only movement wants to make English the official language of the United States. It seems they have focused their concern mainly on the diffusion of Spanish into US culture, with labels and signs being printed in both languages.

Yet I'm not aware of any outrage against the corruption of our legal language by the Romans. Just look at some of the ridiculous phrases I've found in Virginia law:

• Mutatis mutandis (139 references)
• Guardian ad litem (158 references)
• Sui juris (5 references)
• subpoena duces tecum (83 references)
• subpoena ad testificandum (1 reference)
  

That says nothing to the words and phrases that have already wormed their way into our beautiful language. Words and phrases such as:

• Habeas corpus
• Fiduciary
  
• Affidavit
  

But in all seriousness, why are we still using Latin in our law books? Is it because it's more obscure and therefore more intimidating? Is it because there's a long tradition of using Latin in law (there was a long tradition of not letting women vote also, it doesn't mean it was right).

There are perfectly good English words and phrases that could be used to make the law more understandable to common people. How many non-attorneys have a clue what "subpoena duces tecum" means? I'd bet the number is ZERO unless someone has been subjected to one.

And isn't one of the cornerstones of Western jurisprudence (OMG, there it is AGAIN) that the common people have the ability to read and understand the law?

Cliff Notes for D.C. vs. Heller

Today the Supreme Court issued it's long awaited ruling in the District of Columbia Et Al. Vs. Heller case (pdf). It should finally put to bed (but sadly probably won't) the rediculous argument that the 2nd Amendment some how only protected the right of the federal government to form an army (militia). It also destroyed several other tired myths that gun-control groups have tried to pass off over the last 45 years. For example:

The 2nd Amendment only protects the right to own 18th century firearms only:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern
forms of search,the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. (D.C. vs. Heller - pg 8).

The 2nd gives the right to bear arms, but congress can take it away by amendment:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed." (D.C. vs. Heller - pg 19).

That the last 'big' 2nd Amendment case, United States v.Miller, 307 U. S. 174, 179 (1939), confirmed that the 2nd Amendment didn't apply to ordinary citizens:

Miller did not hold that (that the 2nd amendment was only for state sponsored militia members -subleum) and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection." (D.C. vs. Heller - pg 49).

That the Second Amendment is about hunting (and no one really hunts anymore):

Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. (D.C. vs. Heller - pg 24).

All-in-all, the majority delivered a through and well founded opinion, laying out why the Second Amendment is just as important and individual a right as the 1st and 4th. Interestingly, the court did not touch on the issue of gun licensing/registration, primarily because the petitioner (Heller) only asked that the District process his license request. Scalia noted:

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. (D.C. vs. Heller - pg 3).

That of course leaves open the question of whether or not the government is allowed to require a license in order for a citizen to exercise a right enumerated in the Bill of Rights.

Can the government require a citizen to obtain a permit before exercising his Second Amendment right to own a firearm? Clearly, given D.C.'s post-decision statements, that exactly what they plan on doing. Given that the majority spent 64 pages explaining how the right to keep and bear arms was a right on the same level as the First and Fourth Amendments, it would seem contradictory that they would then claim "oh, but you need a permit from the government to exercise this one" unless the government is also able to require permits prior to speaking, publishing a newspaper or in order to petition the government for a redress of grievances. Or the more extreme example, a permit needed to exercise your right to be free of unreasonable searches and seizures. Alas, this is another area that will have to be ironed out over the coming years.

For it's part, D.C. is guaranteed to do everything in it's power to minimally comply. The District's Attorney General, Peter Nickles provided a glimpse of their strategy:

We are going to strictly regulate the registration of handguns. There will be no authorization of automatic or semi-automatics.

Which to me seems like a very questionable legal strategy. Primarily because the SCOTUS opinion clearly says handguns are protected because they are common and popular self-defense weapons.

Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. (D.C. vs. Heller - pg 58).

And semi-automatics are the most popular type of handgun. Sadly, this is not unexpected from the AG that declared that D.C. roadblocks were clearly constitutional. And oh, and he was on the wrong side of the Heller case as well.

Who Thought Schapelle Corby's Excuse Was BS?

If you think Schapelle Corby's excuse of "Those are not my drugs!" was unbelievable, perhaps you should take a look at this story. A Japanese police officer stuck 1/3 of a lb of pot into some unsuspecting passenger's suitcase at Tokyo Airport in order to test out his drug dog. The dog failed to find the pot, and the cop couldn't remember which bag he put it in.

Oops. Now someone is traveling around with 142 grams of pot in their suitcase. I hope they're not on their way to Indonesia.

Breathalizer Battle Heats Up In Minnesota

One of the more novel legal defenses to be used recently has centered around DUI cases. All over the country, from Florida, to Minnesota, people accused of DUI on the basis of a 'breath test' have requested that the court allow them to closely examine the device that said they were drunk. In most cases, the device is some version of the Intoxilizer made by CMI of Owensboro, KY. The Intoxilizer is probably the most popular 'breathalizer' in the US and as it's use has grown, it's scientific validity has been largely taken for granted. Until now.

Scores of DUI defendants have asked to see the source code of these devices to see what makes them tick, and more importantly, to see if there are any bugs or flaws in the device's programing code. Any bug could be used to instill doubt that the device has accurately recorded the blood alcohol level of a defendant. Additionally, if the device seemed at all capricious about how it determines if someone is, say a .07 vs. a .08 BAC, it would be a 'get out of jail free' card for all these DUI defendants.

Which leads us to the latest development in Minnesota. Multiple courts in Minnesota (including the Minnesota Supreme Court) agreed that the defendants had a right to view the code and asked CMI to turn it over to the defendant's lawyers. CMI refused, stating that the source code was proprietary. This was in spite of the fact that the state contract to purchase the Intoxilizer devices mandated that CMI would provide the source code to the state if asked. Of course, they never did until now, which means it's likely that no one outside of CMI has any idea how the device actually works.

On Monday, the Minnesota Department of Public Safety sued CMI in U.S. District Court to force them to turn over the source code. The DPS needs to code or else they will face a court backlash (which has already begun) in which judges wholesale dismiss DUI cases. CMI for their part, has held fast, but this is the first time that CMI has been the target of a suit.

The more CMI delays and looks reluctant, the more it looks like there might be something really wrong with that source code. No doubt, CMI has a lot to lose. One small bug and DUI cases get thrown out all over the country...and their product becomes the new Quadro Tracker. Refuse to give up the code (or get the court to say they don't have to) and the device becomes questionable in court and useless to their biggest customer, law enforcement agencies.

Virginia Supreme Court Says 'No' To Regional Taxes

The Supreme Court of Virginia, which is known (by me at least) for or it's no-nonsense rationality, struck down the power of the Northern Virginia Transportation Authority (NVTA) and the Hampton Roads Transportation Authority (HRTA) to tax without representation by 'the people'. The opinion can be found here (PDF)

The Virginia Legislature should take notes from the VASC on how to read....and start with the Virginia Constitution.

See: A few Lucky Virginians Have Another Nasty Surprise In Store -- Compliments Of The Legislature

Abusive Driver Fees Are Not Just For Cars

As Kajuan Cornish found out. He was issued a $1,050 fine for recklessly ridding his bicycle in Newport News, VA. Cited on 12/27/2007 for misdemeanor "Reckless Driving - Bicycle" under VA Code 46.2-852, he was eligible for the same abusive driver fees as everyone else. He was convicted in district court but appealed his conviction to circuit court on 1/10/2008.

I'll follow this one to see where it ends up.

The Time Has Come To End The Death Penalty

Last week a Texas man, Charles Chapman, was freed after spending 27 years in prison for a crime the state now admits he never committed. Sentenced to prison in 1981 for rape, it was DNA evidence that finally exonerated him. And DNA evidence is nothing new to Dallas County, the jurisdiction that convicted Chapman. In fact, since 2001 (15) wrongly convicted people have been released from this one county alone based on DNA evidence.

According to the Innocence Project, the first DNA based exoneration was in 1989 (PDF). Since that time there have been (192) people released from prison because the DNA evidence showed they were wrongly convicted. Fourteen of those wrongly convicted people had been sentenced to death. And those numbers are certainly just the tip of the iceberg.

It is now painfully clear that the debate about the likelihood of the government wrongly killing an innocent, wrongly convicted citizen has moved well beyond the academic. I fail to see how anyone, at this point, can support the death penalty when it is clear that justice not only makes mistakes, but does so frequently.

For the state to take away 27 years of someone's life is a horrific mistake. Killing them in error at this point, knowing what we now know, is nothing short of criminal.

Legal Bizzarre: Don't Slander Virginia

Apparently, in the Commonwealth of Virginia, libel and slander only apply if the object of your lies is a woman. Be careful what you say to chaste Virginian belles.

§ 18.2-417. Slander and libel.

Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female's character for virtue and chastity, or imputing to such female acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

(Code 1950, § 18.1-256; 1960, c. 358; 1973, c. 526; 1975, cc. 14, 15.)

But feel free to talk about the dirty ones all you want.

A few Lucky Virginians Have Another Nasty Surprise In Store -- Compliments Of The Legislature

After the public outcry over the last 4 months related to the "Abusive Driver's fees" it's fascinating that another provision in the very same transportation funding bill (House Bill 3202) has not come under more public scrutiny.

Starting January 1, 2008, the Northern Virginia Transportation Authority (NVTA) and the Hampton Roads Transportation Authority (HRTA) will begin taxing all sorts of activities in the Northern Virginia and the Hampton Roads areas. These taxes will be imposed on residents in the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park, Norfolk, Newport News, Chesapeake, Suffolk, Portsmouth, Virginia Beach, Hampton, Williamsburg and Poquoson and the counties of Arlington, Fairfax, Loudoun, Prince William, Isle of Wight, York and James City.

Here are the new taxes and fees (.doc), all of which are in addition to any existing tax on these activities:

• 2% tax on all motor vehicle rentals
• 5% tax on all automotive repairs, including things like oil changes
• $10 fee for your annual vehicle registration
• 1% (of the purchase price) additional fee for your initial vehicle registration
• $10 additional fee for motor vehicle inspection
• 2% additional hotel tax
• A $0.40/$100 of valuation sales tax on all real property sales (this is an tax increase of 500% from the current tax of $1/$1000 of value. No doubt this will help the ailing housing market)

The money will go into a State Treasurer fund (Special Sales and Use Tax Motor Vehicle Repair Fund) and will be doled out to the NVTA or HRTA as 'appropriate'. What does appropriate mean exactly? Well neither Authority is required to follow Virginia procurement guidelines and is free to issue “no-bid” contracts to whomever they wish. I'm sure it will be frequently 'appropriate'.

The Authorities were also given the ability to issue bonds and to obligate your future taxes to the payments on those bonds. And all of this power, in a pseudo public body that is run by appointees. That’s right, the NVTA and the HRTA members are not elected by the public, so you are being taxed without representation.

The only ray of hope in this is that Loudoun County and attorney Robert G. Marshall were just granted a joint appeal by the Virginia Supreme Court in their cases against the NVTA. Hopefully, the VASC will put a halt to this bureaucracy run amok.