TheWalrus30 said:
The "Commerce Clause" has been bastardized to such an extent that EVERYTHING is interstate commerce (and I think you say as much, but I'll still continue with my interstate commerce rant just in case you decide to prominently rely on that argument). Say someone burns down a house. They didn't cross state lines to do it. The house was built with all American, all in-state products by an all American, all in-state crew. But what about that gas you used to light the fire? Sure, you got it from the gas station down the road. But where was it before that? Unless you live in Texas, it probably came from out of state. That's enough to make it interstate activity and make it a federal crime. (I disagree, but the Supreme Court doesn't.)
Except for drunk rape on college campuses. That's it's only limit >_<
And things get even more clever/ridiculous with drug laws. All the government has to show is that there was an EFFECT on interstate commerce.
That's b.s. - as the Health and Welfare of the general populace cannot supersede the property rights of an individual.
And the reasoning behind this is that the drug laws are, according to case law, "Malum in se"
And if you want to go totally b.s. on this... the court used case law to back it up...
Church of Scientology Flag Service Org. V. City of Clearwater, 2 F.3d 1514 (11th Cir. 1993)
U.S. V. Cordoba-Hincapie, 825 F. Supp. 485, 493 (E.D.N.Y. 1993).
These opinions are based on the "perceived dangerousness of drugs and drug trafficking."
This thing reaks of being a legislated moral code.
Drugs are malum in se?
If they are WRONG - so wrong on a fundamental level that ALL users believe them to be WRONG every time they are used, then this statement is correct.
Are drugs WRONG or are drugs merely property?
That's the fundamental question that the court shirks in it's opinon I picked up yesterday...
However it claims....
Drugs are NOT property - and one has no fundamental right to possess that which Congress has prohibited through the Interstate Commerce Clause.
Irony - Nuclear weapons, chemical waste, and child porn were used to turn back my position.
I just covered Nuclear weapons and chemical waste.
Child porn is specifically legislated morality.
This is not Constitutional.
The creation of child porn is criminal. Once it is created, no further harm is done by possessing that which has already been made.
Again though - there is a fundamental infringement upon the rights of another (the child in the creation of the pornogrophy) which trumps the property rights of those wishing to possess the child porn.
All child porn could be seized as evidence of the actual crime - the violation of the Child's rights.
Drugs fail to be malum in se - as they harm no one but the user according to his waiver of other's responsibility for this harm, by his own choice to risk his health body and mind in his pursuit of happiness.
Drug dealing is no more intristically dangerous than selling popcorn at a movie theater.
The reason drug dealing is possibly malum in se is not the fact that dealing is WRONG inherently of itself, but because the unconstitutionally legislated moral code banning drugs as something other than private property - to not be policed nor protected as one's fundamental property rights MUST be in accordance with the Constitution, making the distribution and possession allegedly criminal, driving away law enforcement and demanding that justice be distributed outside the legal system and governmental protections of our fundamental property rights.
This fundamental argument; that drugs are malum in se - is so indoctrinated within the Court's opinion that there is no way to challenge anything.
This goes back to their other argument; no one has a fundamental right to possess that which Congress has prohibited...
If Congress may pick any item that may cause a threat to the health and welfare of the American people - and after creating such a law, one is denied to have ever possessed the RIGHT to possess (through ownership) PROPERTY which Congress has converted into something that is "malum in se" in complete absence of due process...
What protections of our rights do we have?
Don't car crashes kill more people every year than drugs? Don't the pollute our environment creating a general threat to the health and welfare of the American people?
Under the reasoning outlined by the court, Congress may legislate away one's right to possess a car due to the perceived threat to the health and welfare of the American people - and the possession of one's property will no longer be "fundamental" but malum in se.
Cars are even worse than drugs in relation to the "General health and welfare" of the people as the pollution affects those that do not drive.
Drug use only affects those that use drugs - not their neighbors nor non-users.
What the court proposes, however, is that the Government's interest in the people's general health and welfare is greater than the people's property interests and their ability to pursue happiness.
It does not matter if private possession of one's private property affects interstate commerce or not.
The claim and exercise of a Constitutionally protected right cannot be licensed nor prohibited as the government claims to do under the CSA.
The CSA prohibits the possession of private property.
Property rights are so fundamental and rooted in the very foundations of this country that there is no way Congress may abrogate them.
The right to possess that which one owns without threat of force by the state to take his property and punish him for merely possessing that which he may possess and distribute by RIGHT OF OWNERSHIP is implicit in the concept of ordered liberty.
The right to possess one's property is fundamental and unalienable. The idea that congress may convert one's property into a privilege, thus denying the people the rights of possession and distribution by RIGHT of ownership - and that these rights may then be dismissed as not being fundamental as they have been converted into privileges is unfathomable by a FREE citizen with a subservient government that rules by limited grants of privileged power.
We Commerce Clause opponents (or, should I say, opponents to it's illicit application) were actually greatly harmed by the Civil Rights movement. Why? Because, in an effort to curb racism, the federal government passed acts like the Civil Rights Act of 1968 which, in part, made it unlawful for hotels to not allow a person to stay there because of their race or ethnicity. The interstate link? People from different states sometimes stay in hotels of another state. If they can't stay in a hotel somewhere else, they might not travel. If they don't travel, the things they'd purchase or sell in the other state don't get purchased or sold. So there you go. Interstate commerce. Ridiculous? Absolutely. But it's a ridiculous connection that has decades and decades of precedent to back it up. The cases finding laws unconstitutional because there is not a connection to interstate commerce are few and far between. And most of the ones that are struck down are just reworded so that they fix their errors and then pop back up again. I wouldn't even use this argument unless you can prove that every single ingredient used to produce the MDMA had it's origin inside your state. Not just that you bought them all instate, but they were wholly and completely manufactured in state. You'll also have to prove that people never crossed state lines with your product.
Unfortunately, due to Lawyerdude's involvement, yes. That is exactly what I would have had to prove - however that doesn't work either as personal possession and production in one locality for one's own personal use in the immediate vicinity of the point of production DOES affect Interstate Commerce - as you reduce the demand on the international black market that does already exist.
I couldn't agree more with you in regards to it being outrageous that the government outlaws behavior that could only in theory infringe upon the rights or property of another person. But, again, the law (aside from the so-far-non-precedential natural law) just doesn't support this. Even if a court were to accept that a consenting adult has a right to possess personal property as long as they don't harm anyone with it, I doubt laws that directly infringe upon those rights would be subject to "strict scrutiny." There are three levels of scrutiny. Strict, intermediate scrutiny, and rational basis. Strict scrutiny denies such rights as not being discriminated against because of skin color. If the government passes a law that infringe upon that it must be to serve a significant gov't interest. It must be narrowly tailored to accomplish only the significant goal, and the government must use the least restrictive means necessary. Ideally, the right to possess property (drugs included) would fall under this. Intermediate scrutiny is applied to things like gender discrimination or laws that remove rights of illegitimate children. It requires a little bit less on all accounts in comparison to strict scrutiny. The last level is rational basis and it applies to everything else. All the government has to show here is that they are trying to accomplish a legitimate goal and the means they are using to do it could rationally end in success.
Well - if it has to rationally end in success, then I can argue that...
Even if possession of ANY property were determined to be a right, possession of intoxicating substances would probably be subject to the rational basis test. The government would say, "Drugs hurt people. We want to keep people off of drugs. So we're making them illegal." The rubber stamp goes on and all is well. Really we already do it. We've determined that people can consume alcohol. But there is a government and societal interest in restricting it's use. We've established legal limits for blood alcohol content while driving. We've restricted the age at which you can purchase and consume alcohol. And there are even laws restricting where you can drink alcohol and, in some states, the kind of alcohol you can purchase is restricted.
And some regulation would be tolerable as long as that regulation prevented actual crime in all cases.
If someone were capable of violating the statute but not committing a crime, then the law must be ruled invalid.
The court also agreed that CRIMES must only exist in civil cases.
For criminal offenses, no one must violate the rights of another.
Something is really wrong here...
The only real hope for reform is a changing of drug laws on a federal and state level. It'll have to be an evolution, though. They aren't going to change over night. And, no matter how noble your intent, your case won't change a thing. Trust me when I say that just about all lawyers and judges have heard those same arguments you made before. They've probably discussed them and debated them thoroughly. These aren't new arguments. Are they morally persuasive arguments? Yep. Are they arguments that most people don't have the balls to use? You bet. But, in the end, the don't really matter. The law is the law and precedent is precedent. And neither law nor precedent is on your side (beyond a few very old cases that courts will consider out of date, and some very narrow cases that courts will say don't fit into your situation).
More or less... :-/
Perjury: Gotta be under oath to commit perjury. Even if a prosecutor intentionally says something that is untrue, it's not a crime, because he's not under oath. There are a lot of other rules that apply to attorneys, and prosecutors even more explicitly, but they are all regulatory ethical requirements that don't violate the law. If you're curious google "Model Rules of Professional Ethics" and maybe add "attorney" to the search to weed out rules for other professions. Penalties can be pretty harsh (losing your license for a period of months or all together for instance), but they are not crimes, per se.
Thanks for clearing that up.
Anyway, I like what you're doing. As I said, it takes balls. And you're right. That's why it sucks so bad to have to tell you that no argument you could make regarding the drug laws being unconstitutional, etc. will help you one bit. I don't know if you did this in the first place or not, but you were better off: 1) getting an attorney and letting him handle the case and 2) attacking the indictment on it's face; attacking the search or seizure of the drugs as illegal; those kinds of things. Although it's still hard to win on those 4th, 5th, and 6th Amendment search/seizure/warrant issues, there is some precedent to back you up. Lawrence v. Texas won't help you. It's a great ruling, but it doesn't help you here. Your best chance in getting the fairest possible sentence is to get evidence excluded. I'll give you a list of cases that might help along with a brief statement of their importance:
1) no - it's Federal. Retainer fees for the cheapest Fed. attorneys start around $50,000. I had 2 panel attorneys (private attorneys retained by the government as I had a co-defendant with a public defender, so I was unable to get one of those...) and both of them said, "Plea. There is no defense."
2) That was done, to some extent. Apparently recording devices being used on someone's private property without the knowledge of those invited onto that property is permissible and not against any law...
Other than that the indictiment stands - as possessing and distributing one's private property through consensual contract is malum in se...
Katz v. United States, 389 U.S. 347 (1967) (you have to have a reasonable expectation of privacy before your right to privacy can be violated; the court discuss what constitutes a reasonable expectation)
Not if you're not on your own property...
Johnson v. United States, 333 U.S. 10 (1948) (this only helps if the search was without a warrant; basically says that, without more, just because you have probable cause to get a warrant doesn't mean you have probable cause to conduct a warrantless search without consent)
Spinelli v. United States, 393 U.S. 410 (1969)(if the probable cause used to get the warrant was based upon an informant, the following test applies--Spinelli Test for reasonableness of search based upon information from informant:
1) Who is the source of the information and is this source reliable?
2) If we don’t know the identity of the source, can we know that it is reliable and credible and what’s the basis of the information?)
Prandy-Binett, 995 F.2d 1069 (D.C. Cir. 1993) (if you're not in the DC circuit this isn't binding precedent, but it can be persuasive. It also states a generally accepted standard on how to determine if probable cause is present--courts like to use a "totality of the circumstances" test because it gives them the most leeway)
I don't have a case for this one, but it could be helpful if the information used as the basis of probable cause was information from quite a while back. If so, the information may have been "stale" and thus not able to be used to determine probable cause.
None of those are applicable.
Probable cause - when one is in possession of that which they own?
Hmm... that's not hard to come up with, is it?
There are a lot of cases similar to the cases I cited, or ones that either discuss, uphold, or distinguish those cases. I'd look into those also.
Hope everything turns out as well as possible. The United States judicial system (I refused to call it a "justice system" as that's so ironic it's not even a little bit funny) is completely messed up. The laws are messed up. The people who enforce the laws are messed up. And (though to a lesser extent I believe) the people who sit in judgment are messed up. It will take serious legislative changes and maybe even constitutional amendments to really change things. I have hope that this will happen, though, as most Americans seem very open to the legality of medicinal marijuana and a very notable percentage (though I believe still a minority) believe in complete decriminalization of marijuana. Those are the two things that will come first. And I think they'll happen in my lifetime. As for other drugs? I really don't know. Again, best of luck.
I definitely agree it isn't a justice system.
It's a criminal system of oppression and control.
Freedom? In a free country?
Not while those with a desire to control will reign over use and invalidate our fundamental rights because Congress has converted them into mere privileges.
