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Thread: Nexus Between 5th and 2nd Amendments!

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    Nexus Between 5th and 2nd Amendments!

    Most readers know to one degree or another about the 5th Amendment right: "no person shall be...compelled in any criminal case to be a witness against himself."

    Did you know there was a connection between the 5th and 2nd Amendments? And, that a US Supreme Court Justice laid it out in plain English? I didn't. Until I read a book--Origins of the Bill of Rights. Leonard Levy, 1999.

    Keep in mind that being forced to testify against oneself flies in the face of self-preservation--the strongest impulse in nature, and the 5th Amendment has deep roots going back to the late 1630's in England. In the chapter on the 5th Amendment, Levy goes into the history behind the 5A. And, he writes,

    [The Framers] were...voicing their conviction that the right against self-incrimination was a legitimate defense possessed by every individual against government...Tough-minded revolutionists...they were willing to risk lives and fortunes in support of their beliefs that government is but an instrument of the people, its sovereignty held in subordination to their rights...The Constitution with its amendments was...an ever-present reminder of their view that the citizen is the master of the government, not its subject. As Justice Abe Fortas observed, "The principle that a man is not obliged to furnishe the state with ammunition to use against him is basic to this conception. The state, he acknowledged, must defend itself and, "within the limits of accepted proecedure" punish lawbreakers. "But it has no right to compel the sovereign individual to surrender or impair his right of self-defense." (emphasis added by Citizen).

    Surrender or impair his right of self-defense! Wow! I wonder if Fortas knew when he wrote that, he was making a strong argument for the 2nd Amendment as well as the 5th. If anybody recognizes that quote from a SCOTUS opinion, please let me know.*



    While I am on the subject of the 5th Amendment, I'll go off on a tangent and discuss another angle not answering questions from police. We occasionally get a cop or citizen who suggests cooperating by answering questions asked by police. This is for them.

    We've all heard the Miranda Warning, "You have the right to remain silent. Anything you say can and will be used against you...". The warning comes from Miranda vs Arizona. It was decided by at least 6-3, maybe 7-2 (I would have to dig a little deeper).

    So, you have at least six of the most powerful, influential lawyers in the country giving you free legal advice. What would it cost if you had to keep that kind of legal power on retainer? We got it for free. Are you really advising us to ignore the considered legal advice of not one, but six of the most powerful, influential attorneys in the country? Attorney's who considered the advice so important that they 1) wrote it down for us and, 2) ordered that police shall pass along their legal advice--free--at a certain point in police investigations?

    Miranda v Arizona: http://www.law.cornell.edu/supct/htm...4_0436_ZO.html


    *8/7/10 I found where Fortas wrote the quoted material. See the "I Found It!" post below.
    Last edited by Citizen; 08-07-2010 at 05:34 PM.

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    Regular Member paramedic70002's Avatar
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    What I find disturbing is that to claim self defense, you are required to waive your 5th Amendment right. Self defense is an affirmative defense, in which you admit to killing but then must prove your innocence from murder. If you kill in self defense but remain silent, the prosecution has but to prove you killed to secure a conviction.
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    Quote Originally Posted by paramedic70002 View Post
    What I find disturbing is that to claim self defense, you are required to waive your 5th Amendment right. Self defense is an affirmative defense, in which you admit to killing but then must prove your innocence from murder. If you kill in self defense but remain silent, the prosecution has but to prove you killed to secure a conviction.
    Yep. It all starts with that 911 call, "...I had to shoot him in self-defense." By saying you shot in self-defense, you also just announced you were the shooter. Thank you very much for the confession.

    I suspect this is the price we pay to keep nasty people from provoking others so they can shoot them and then claim self-defense. Maybe not planned that way, but as a result of our adversarial system of justice.

    The book VA Gun Owners Guide has more about this angle, but I cannot recall the details.

    The other side of the coin is that if you dummy up or don't call the police right away, it looks bad to the police. If they find you were connected to the shooting, it ain't gonna look good. Flight can still be used to indicate a guilty mind, as I understand it.

    I don't think I would pin my hopes on the cops finding enough evidence of a self-defense shooting to convince the prosecutor not to take it to a grand-jury. The bad-guy's knife laying on the ground only proves he had a knife, not that he was attacking me. His knife does not show whether I provoked his attack, or whether I retreated after unintentionally creating hostility in him. It does not show who had ability, opportunity, and who was in jeopardy.

    With all that said, I think the connection between the 2nd and 5th Amendment is amazing. I hope I find where Justice Fortas wrote that.

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    Quote Originally Posted by Citizen View Post
    With all that said, I think the connection between the 2nd and 5th Amendment is amazing. I hope I find where Justice Fortas wrote that.
    When Citizen starts(!) a thread we do well to attend carefully. Thanks.

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    Quote Originally Posted by paramedic70002 View Post
    What I find disturbing is that to claim self defense, you are required to waive your 5th Amendment right. Self defense is an affirmative defense, in which you admit to killing but then must prove your innocence from murder. If you kill in self defense but remain silent, the prosecution has but to prove you killed to secure a conviction.
    I don't find it disturbing in the least.

    For example, you're standing over a corpse with a smoking gun. Later, ballistic tests prove that the gun you were holding was responsible for the hole that turned the person into the corpse. That's a pretty good case against you, right there. It is naturally now up to you to say, "Wait a second. He was trying to kill me. I just defended myself."

    The State, by having presented a prima facie case that you murdered someone, has shifted the burden of proof to you to show that your actions were justified.

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    I found it!

    Apparently Fortas wrote that comment against being compelled to surrender or impair one's right of self-defense in the Cleveland Bar Association Journal in 1954, well before he was appointed to the Supreme Court.

    Another book, excerpted on the web, cites: Abe Fortas. The Fifth Amendment: Nemo Tenetur Prodere Seipsum. 25 Cleveland Bar Association J. 91 (1954).

    "Nemo Tenetur Prodere Seipsum" is Latin for "no person is bound to betray himself."

    The book excerpted on the web that cited Fortas is The Construction of Authorship: Textual Appropriation in Law and Literature. That website refused to display the material when I tested the link I posted here. It seems the book is for sale and the excerpt was for the viewing of potential book buyers.
    Last edited by Citizen; 08-07-2010 at 05:53 PM.

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    Quote Originally Posted by Citizen View Post
    Most readers know to one degree or another about the 5th Amendment right: "no person shall be...compelled in any criminal case to be a witness against himself."

    Did you know there was a connection between the 5th and 2nd Amendments? And, that a US Supreme Court Justice laid it out in plain English? I didn't. Until I read a book--Origins of the Bill of Rights. Leonard Levy, 1999.

    Keep in mind that being forced to testify against oneself flies in the face of self-preservation--the strongest impulse in nature, and the 5th Amendment has deep roots going back to the late 1630's in England. In the chapter on the 5th Amendment, Levy goes into the history behind the 5A. And, he writes,

    [The Framers] were...voicing their conviction that the right against self-incrimination was a legitimate defense possessed by every individual against government...Tough-minded revolutionists...they were willing to risk lives and fortunes in support of their beliefs that government is but an instrument of the people, its sovereignty held in subordination to their rights...The Constitution with its amendments was...an ever-present reminder of their view that the citizen is the master of the government, not its subject. As Justice Abe Fortas observed, "The principle that a man is not obliged to furnishe the state with ammunition to use against him is basic to this conception. The state, he acknowledged, must defend itself and, "within the limits of accepted proecedure" punish lawbreakers. "But it has no right to compel the sovereign individual to surrender or impair his right of self-defense." (emphasis added by Citizen).

    Surrender or impair his right of self-defense! Wow! I wonder if Fortas knew when he wrote that, he was making a strong argument for the 2nd Amendment as well as the 5th. If anybody recognizes that quote from a SCOTUS opinion, please let me know.*



    While I am on the subject of the 5th Amendment, I'll go off on a tangent and discuss another angle not answering questions from police. We occasionally get a cop or citizen who suggests cooperating by answering questions asked by police. This is for them.

    We've all heard the Miranda Warning, "You have the right to remain silent. Anything you say can and will be used against you...". The warning comes from Miranda vs Arizona. It was decided by at least 6-3, maybe 7-2 (I would have to dig a little deeper).

    So, you have at least six of the most powerful, influential lawyers in the country giving you free legal advice. What would it cost if you had to keep that kind of legal power on retainer? We got it for free. Are you really advising us to ignore the considered legal advice of not one, but six of the most powerful, influential attorneys in the country? Attorney's who considered the advice so important that they 1) wrote it down for us and, 2) ordered that police shall pass along their legal advice--free--at a certain point in police investigations?

    Miranda v Arizona: http://www.law.cornell.edu/supct/htm...4_0436_ZO.html


    *8/7/10 I found where Fortas wrote the quoted material. See the "I Found It!" post below.

    key word here is sovereign individual. Most people are not in the sovereign category. Educate yourselves, learn how
    yoiur rights are being given up.

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    Call to 911, "I was in fear for my life. There's been a shooting at (insert place here)."

    Your next step. Shut up.

    Take your cue from the police, shut up and get representation.

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    Quote Originally Posted by paramedic70002 View Post
    What I find disturbing is that to claim self defense, you are required to waive your 5th Amendment right. Self defense is an affirmative defense, in which you admit to killing but then must prove your innocence from murder. If you kill in self defense but remain silent, the prosecution has but to prove you killed to secure a conviction.
    Castle Doctrine being an exception, or showing you killed someone who was in the act of committing a felony classified as a crime of violence. But your point is a very good one.

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    self defense

    Quote Originally Posted by paramedic70002 View Post
    What I find disturbing is that to claim self defense, you are required to waive your 5th Amendment right. Self defense is an affirmative defense, in which you admit to killing but then must prove your innocence from murder. If you kill in self defense but remain silent, the prosecution has but to prove you killed to secure a conviction.

    if you kill, you are innocent until proven guilty. you will be charged and tried.

    if you kill and claim self defense, you are still innocent until proven guilty.
    it is now up to the prosecutor to prove that you Did Not act in self defense.
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

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    Quote Originally Posted by 1245A Defender View Post
    if you kill, you are innocent until proven guilty. you will be charged and tried.

    if you kill and claim self defense, you are still innocent until proven guilty.
    it is now up to the prosecutor to prove that you Did Not act in self defense.
    It may vary from jurisdiction to jurisdiction, but it is my understanding that self defense as a justification is an affirmative defense and, as such, requires the defendant present evidence of that affirmation.

    The prosecution need only prove the elements of the crime. Then, unless a justification defense is put forth, conviction would result. To put forth such a defense, the defendant may not merely claim self-defense, he must present proof.

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    further proof

    Quote Originally Posted by eye95 View Post
    I don't find it disturbing in the least.

    For example, you're standing over a corpse with a smoking gun. Later, ballistic tests prove that the gun you were holding was responsible for the hole that turned the person into the corpse. That's a pretty good case against you, right there. It is naturally now up to you to say, "Wait a second. He was trying to kill me. I just defended myself."

    The State, by having presented a prima facie case that you murdered someone, has shifted the burden of proof to you to show that your actions were justified.
    Your crazy. If I'm the only one alive to say what happened, you have absolutely no justification to disagree with me at all. You have to disprove my version of events. This goes directly to the fact that the 5th amendment is designed to protect the innocent, not the guilty. You need to rewatch this, and try some actual comprehension this time.
    Don't talk to the police!
    illegal ≠ immoral legal ≠ moral
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    This is in practice true,

    Quote Originally Posted by eye95 View Post
    It may vary from jurisdiction to jurisdiction, but it is my understanding that self defense as a justification is an affirmative defense and, as such, requires the defendant present evidence of that affirmation.

    The prosecution need only prove the elements of the crime. Then, unless a justification defense is put forth, conviction would result. To put forth such a defense, the defendant may not merely claim self-defense, he must present proof.
    But was not the intent. The burden of proof should always remain with the state.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Quote Originally Posted by marine77 View Post
    key word here is sovereign individual. Most people are not in the sovereign category. Educate yourselves, learn how
    yoiur rights are being given up.
    If you except the government identification they gave you...(Birth Certificate)
    They look at you as an artificial individual...citizen of the United States, created by the 14th
    Amendment so the United States would have their own citizens.
    Life is tough, its tougher when your stupid.

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