Repeater
Regular Member
Legislative Negligent Discharge?
If you don't know how to handle a firearm, then don't.
If you don't know how to write bills, then don't.
Simple.
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VCDL's LOOK AT THE CASTLE DOCTRINE FOR VIRGINIA
- Thread starter ed
- Start date
Legislative Negligent Discharge?
If you don't know how to handle a firearm, then don't.
If you don't know how to write bills, then don't.
Simple.
marshaul
Campaign Veteran
If this advice were followed, we'd have about 6 laws. Maybe 10.
Citizen
Founder's Club Member
ROFLMAO!!! Too true, too true.
Citizen
Founder's Club Member
Based on my understanding, yes and no.
For all practical purposes, with regard to any bills or statutes today, yes.
Here is my understanding:
Think back to the Dark Ages and Middle Ages. Lotsa people in England didn't read--couldn't read. Other countries too, but lets talk about England. So, far enough back, you have lots of local unwritten law otherwise known as custom, the common law, the law of the land. Certainly, the king's judges didn't start getting around on circuit until Henry II in the mid-1100's.
So, as time went on judges started writing down the common law in their written opinion in order to support or explain their decision.
So, today, most the common law that we know of is found written down in court opinions. But, not all. Magna Carta recorded some. And, some legal commentators like Coke and probably Blackstone wrote some down. Also, some can be found in the writings of defendants during and after trial, and some in transcripts of trials or written accounts of trials by attendees.
For example, Thomas More, when sentence was about to be passed upon him for high treason, interrupted the judges to say, "My Lords, when I practiced law the manner was to ask the prisoner if he had anything to say before sentence was passed." The statement is not a part of that court's opinion, but the fact that a former Chancellor of England cited the practice, and the fact that the court then allowed him to comment tells us that letting the prisoner comment was indeed part of the common law, or maybe established procedure.
Another example of common law not written down in court opinions, there was a huge political flap in New York colony, shortly after the Dutch lost it to England, I think. It involved the governor and his council. They examined a number of witnesses on compulsory oath to testify essentially against themselves. Up to this point, there is not a lot written down about the right against self-incrimination in New York's colonial history. But, the fact that witnesses raised a stink and petitioned the Privy Council (the king's highest council) precisely about being compelled to testify against themselves, and the fact that the Privy Council told the governor to knock it off, and the fact that the governor and his council lost no time distancing themselves from the accusation tells us that the right against self-incrimination was a part of the common law in New York colony under Britain.
So, yes and no. No, because there is common law recorded outside of court opinions, but I suspect courts are not bound to follow something not written in court opinions, meaning I kinda think stare decisis (faith to precedent) would be a bit harder to force a judge to follow. And, it could take some real exhaustive scholarship to convince a perhaps prejudiced judge to accept something from a scholar or witness account written in 1229AD.
user
Accomplished Advocate
The common law
That's pretty much it, with an historical wrinkle. When William the Bastard (so-called because his father, the Duke of Normandy, was married to someone other than William's mother) became William the Conqueror at the Battle of Hastings in 1066, he became the proprietor of a land already populated with disparate groups of relatively isolated folks who all had not only the legal systems they'd brought with them (Angles, Saxons, Jutes, & Frisians, mostly), but also the overlay of the Danelaw, since Denmark had previously conquered the Northeastern chunk of England, and vestiges of Roman law, preserved mainly by the ecclesiastical folks. Local law was enforced by the local lords, and local traditions prevailed.
After a while, there was a push (especially under Henry 7) to centralize governmental operations and the Court of King's Bench began "discovering" the law they all had in common as a means of applying a consistent appeal process from local courts, and to enforce Henry's financial exactments. That process continued in England up through the Nineteenth Century, and is still a theoretical possibility.
Here's what got incorporated in to Virginia law from that process:
§ 1-200. "The common law."
and § 1-201. "Acts of Parliament."
Note that the fourth year of the reign of James I was 1607, the year Jamestown was founded and the white folks brought the blessings of English law to this continent.
That's pretty much it, with an historical wrinkle. When William the Bastard (so-called because his father, the Duke of Normandy, was married to someone other than William's mother) became William the Conqueror at the Battle of Hastings in 1066, he became the proprietor of a land already populated with disparate groups of relatively isolated folks who all had not only the legal systems they'd brought with them (Angles, Saxons, Jutes, & Frisians, mostly), but also the overlay of the Danelaw, since Denmark had previously conquered the Northeastern chunk of England, and vestiges of Roman law, preserved mainly by the ecclesiastical folks. Local law was enforced by the local lords, and local traditions prevailed.
After a while, there was a push (especially under Henry 7) to centralize governmental operations and the Court of King's Bench began "discovering" the law they all had in common as a means of applying a consistent appeal process from local courts, and to enforce Henry's financial exactments. That process continued in England up through the Nineteenth Century, and is still a theoretical possibility.
Here's what got incorporated in to Virginia law from that process:
§ 1-200. "The common law."
and § 1-201. "Acts of Parliament."
Note that the fourth year of the reign of James I was 1607, the year Jamestown was founded and the white folks brought the blessings of English law to this continent.
user
Accomplished Advocate
I've been pretty busy with this "castle doctrine" stuff...
My latest information is that SB4 and HB48 have been moved into conference committee status where they are expected to die. However, I believe the Virginia Gun Owners' Coalition and the Gun Owners' Foundation are on board in opposition to these abortions. Moreover, I spoke to Mike McHugh, president of the Va. Gun Owners' Coalition, today, and it is his opinion that there is a more than even chance that my comprehensive personal defense proposal could be substituted for those bills this year. He agreed with me that whether or not that proposal codifies the common law, it's what the law ought to be, and it's what we want. The one risk is that the tinkerers among the legislators will want to change "happy" to "glad" and muck something up. However, " 'Tis a consummation devoutly to be wished."
If it were to happen, I have visions of the people of other states who've been hoodwinked into enacting crippled "castle doctrine" statutes copying what we do here. Would that be cool or what?
Thanks to TFred, btw, for putting me in touch with McHugh.
My latest information is that SB4 and HB48 have been moved into conference committee status where they are expected to die. However, I believe the Virginia Gun Owners' Coalition and the Gun Owners' Foundation are on board in opposition to these abortions. Moreover, I spoke to Mike McHugh, president of the Va. Gun Owners' Coalition, today, and it is his opinion that there is a more than even chance that my comprehensive personal defense proposal could be substituted for those bills this year. He agreed with me that whether or not that proposal codifies the common law, it's what the law ought to be, and it's what we want. The one risk is that the tinkerers among the legislators will want to change "happy" to "glad" and muck something up. However, " 'Tis a consummation devoutly to be wished."
If it were to happen, I have visions of the people of other states who've been hoodwinked into enacting crippled "castle doctrine" statutes copying what we do here. Would that be cool or what?
Thanks to TFred, btw, for putting me in touch with McHugh.
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hope this happens, but nothing occurred with either bill today as both houses adjourned with most of their business unaddressed other than being passed by for the day.
would be very cool if your draft, substantially, becomes codified in va and serves as an eye-opener in other states.
TFred
Regular Member
I dare to hope...
And BTW, it was much more like a "mutual pointing to," than a "putting in touch with..." But very glad to help anywhere possible.
TFred
Citizen
Founder's Club Member
Wow! That really fills in some blanks in my understanding. Thank you!
By the way, ecclesiastical and folks don't go together as words. This is the result of too much knowledge packed into a down home Virginia southern boy.
What happens when the rest of us down home VA southern boys ain't got the same backround? Can't you just say "church authorities operating ex officio?"
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Citizen
Founder's Club Member
Just as a side note, and to return the history favor, I've come across a reference that states that Jamestown's charter, as given by James I, directs that the colonists enjoy all the privileges and protections of English law. That is to say the king in his charter expressly draped the protective mantle of English liberties upon them.
...Also we do, for Us, our Heirs, and Successors, DECLARE, by these Presents, that all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions... Jamestown Charter 1606
http://avalon.law.yale.edu/17th_century/va01.asp
Edited to correct erroneous info and provide quote.
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2a4all
Regular Member
And over the next 170 years, His Heirs and Successors transformed this mantle of liberties into a yoke of repression, which we threw off in revolution, choosing to govern ourselves under the framework of a constitution which would (hopefully) prevent this from recuring.
And after only 236 more years, thanks to User, we (hopefully) are reestablishing the meaning of "Castle Doctrine"!
Citizen
Founder's Club Member
Umm. Not exactly. One Successor and his Parliament. George III.
The revolution was fought primarily because of that one batch of knuckleheads was too stupid to keep a good thing going.
nuc65
Activist Member
Very Cool +1
I would still like to see a 911 bill passed that prevents self-incrimination when using the 911 state owned and operated system to report an emergency need.
We seem to me that indeed it is. The problem is it still leaves it up to a judge to sort it all out.
It kinda like getting a coupon for a free meal, then finding out that you still have to pay for it. :uhoh:
Common Law:
A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.
http://legal-dictionary.thefreedictionary.com/Common+law
Case Law:
Legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases.
As opposed to statutes—legislative acts that proscribe certain conduct by demanding or prohibiting something or that declare the legality of particular acts—case law is a dynamic and constantly developing body of law. Each case contains a portion wherein the facts of the controversy are set forth as well as the holding and dicta—an explanation of how the judge arrived at a particular conclusion. In addition, a case might contain concurring and dissenting opinions of other judges.
Since the U.S. legal system has a common-law system, higher court decisions are binding on lower courts in cases with similar facts that raise similar issues. The concept of precedent, or Stare Decisis, means to follow or adhere to previously decided cases in judging the case at bar. It means that appellate case law should be considered as binding upon lower courts
http://legal-dictionary.thefreedictionary.com/Case+Law
TFred
Regular Member
Just a point:
I believe in those two lines you have summed up the prevailing motive that everyone (including "us", if you remember the results of that legislative survey I put out a couple months ago) has as a reason to codify a Castle Doctrine type law.
We want the protection of what we have in Common/Case law history, but without having to go through the risk and expense of the legal system to get it.
TFred
Perhaps this is why the lawyers are not very keen on a Castle Doctrine actually becoming law.
TFred
Regular Member
By the way, if this does somehow manage to happen, be prepared to see the Democrats do the fastest 180 you have ever seen in your life.
They have been saying all along, "it ain't broke, so don't fix it," but that's only because it has been their most convincing reason to oppose the bills.
If User's bill makes it "out", expect a FURY of opposition to the bill from the Democrats. The most interesting thing will be to see what excuse they come up with... but if it happens we must have all our folks HAMMER them with "but you just said the other bills broke it, this one won't, what is it you really want?"
JMHO...
TFred
user
Accomplished Advocate
Problem is, that really ain't gonna happen. Nothing in any statute is going to stop people from filing criminal charges or civil suits. Anyone can sue anyone at any time for any reason, good reason, bad reason, or no reason at all. And anyone can go to a magistrate and swear out a complaint. I read one state's new "castle doctrine" statute that purports to limit the ability of a person to file suit against someone who defended himself, his home, and his family with force over the injury or death to the attacker. But even that won't work. Because anyone can file suit. The question is always whether one has a good defense to the suit or charge.
As I've been working on this castle doctrine stuff, I've been persistently attacked by Richard Gardiner, formerly NRA general counsel, who keeps saying there is no "defense of habitation" defense, and challenging me to find him a case from the Virginia Supreme Court in the last fifty years in which someone raised that defense and the court issued an opinion on the subject. Fact is, I've sent him opinions on top of opinions that make reference to it, to the castle doctrine which it implements, and to the same idea in different words (right to defend the home, etc.). But there has not been any such appellate opinion for a really long time. He takes that as proof that there is no such thing. What it actually proves is that where there is such a good, well-founded, and historically authoritative defense, (1) cops don't bother to bring charges; (2) magistrates don't bother to authorize warrants; (3) prosecutors will not prosecute; (4) lawyers will not file suit; and (5) even if none of that is true, the person will win at trial. The only way an appellate opinion is generated is if someone appeals! That means someone has to have attempted to use "defense of habitation" as an affirmative defense at trial, lost, and appealed up through the layers of courts above the trial court. But that hasn't happened.
There is no opinion anywhere that I've been able to find, conclusively finding that the sky is, in fact, blue. That must mean that it isn't really blue, right? Either that, or no one's bothered to have the case tried and lost, such that there is an appellate opinion on the subject.
Here's my point: the best and strongest defense one can have against the trouble and aggravation of litigation is a statute making it clear that you've got a good defense at trial. That way, it is extremely unlikely that anyone will cause trouble, and secondly, it'll all be over pretty quickly and with a minimum of fuss and expense. Even if the statute says, "immunity from civil prosecution", that doesn't mean someone can't file suit against you. There is no magic. But you can, and should, reduce the exposure.
user
Accomplished Advocate
... to use the technical term ...
user
Accomplished Advocate
Wow! That really fills in some blanks in my understanding. Thank you!
By the way, ecclesiastical and folks don't go together as words. This is the result of too much knowledge packed into a down home Virginia southern boy.
What happens when the rest of us down home VA southern boys ain't got the same backround? Can't you just say "church authorities operating ex officio?"
Well, having come from DelRay, in Alexandria, myself, I ain't as civilized as y'all down-home Southern fellas. When I was living there, my house was one block from Potomac Yards, the largest railroad switching yard on the East coast, and it flooded every year when Four-Mile Run got too big for its banks. So my neighborhood was "integrated" well before any of that civil rights stuff, because everyone there was equally poor. No one in my neighborhood used high-falutin' language like, "church authorities". Why would anybody talk about such things, anyway?
The result is that I have two distinct modes of communication. DelRay, which I cannot use in polite society, and which does not conform well to the written form, and "History major academic". As my grandmother used to say, "That Danny, that boy just ain't normal."; "Danny, you jus' full'a stuff!" and "You ain'no better'n me, and if you think y'are, I'll knock ya down!". So, not being up to the elevated standards of "good ol'bwah", I lapse into the artificialities of academic hogwash. I hope you'll all forgive me this deficiency in my upbringing.
(Note: the railroad is gone and Potomac Yards is now a shopping mecca, and flood-control projects have changed the flood plain into the domain of yuppies who all think it's chic to live in renovated row-houses built in the 1930's and 1940's. I wish I'd inherited my grandmother's house on Nelson Avenue and sold it to the yuppies.)
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