Editorial: Denial of Second Amendment rights warrants a jury trial

Earlier this month, the Nevada Supreme Court ruled a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their Second Amendment right to keep and bear arms denied.

In keeping with a 1993 U.S. Supreme Court decision, our state’s high court had previously held that only those persons charged with a “serious” crime are entitled to a jury trial, which was defined as a crime carrying a sentence of greater than six months. 

The unanimous opinion written by Justice Lidia Stiglich stated the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.” 

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich writes in a case out of Las Vegas.

The ruling concludes, “Given that the Legislature has indicated that the offense of misdemeanor domestic battery is serious, it follows that one facing the charge is entitled to the right to a jury trial.”

Attorney Michael Pariente, who represented appellate Christopher Anderson, told the Las Vegas newspaper, “I applaud the Nevada Supreme Court for unanimously doing the right thing. I think it’s a huge decision. They spoke with one voice, and it’s a good day for people who are charged with misdemeanor domestic violence. It forces the prosecutor to prove their case beyond a reasonable doubt to a 12-person jury instead of one single, sitting judge.”

But Nevada Attorney General Aaron Ford, whose office argued against allowing a jury trial in such cases (See clarification/correction below), put out a statement saying, “The devastating consequences of this decision cannot be overstated. Misdemeanor courts across this state are not equipped for jury trials, and this decision could have a widespread chilling effect on domestic violence victims coming forward. My office is working hand-in-hand with city, county, and federal officials to formulate a response and prevent the domestic violence epidemic in this state from further devastating our communities. The most immediate priority for my office is doing whatever it takes to ensure more people are not killed by their abusers as a result of this decision.”

Frankly, we have to ask: Why did it ever come to this?

The Webster’s definition of “all” is: “the whole amount, quantity, or extent of; every member or individual component of; the whole number or sum of; every.”

You see, Article 3, Section 2, of the U.S. Constitution states: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury …”

The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”

The Nevada Constitution says: “The right of trial by Jury shall be secured to all and remain inviolate forever …”

How the U.S. Supreme Court decided “petty” crimes do not warrant a trial by jury is beyond our feeble minds, but in any case the Nevada high court is to be applauded for deciding that the denial of the fundamental right to bear arms constitutes a serious matter and deserves a trial by a jury of one’s peers.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Nevada Supreme Court justices: Seated: Associate Chief Justice Kristina Pickering, Justice Ron D. Parraguirre, Chief Justice Mark Gibbons, Justice James W. Hardesty, Justice Lidia S. Stiglich. Standing: Justice Abbi Silver, Justice Elissa F. Cadish.

 

Clarification/correction

A recent editorial stated that Nevada Attorney General Aaron Ford’s office argued against allowing a jury trial in misdemeanor domestic violence cases. The office was not actively involved in the case in which the Nevada Supreme Court ruled that because the Legislature passed a law allowing the denial of Second Amendment rights for persons convicted in such cases that persons thus accused have the right to a jury trial because the charge is now serious rather than petty.

After the ruling, Ford’s office issued a statement in response to a media inquiry about possible victim impact. Only part of the statement appeared in the media. The full statement reads:

“One of the main areas of focus for my office is the protection of constitutional rights. That means all rights – including the 2nd Amendment right to bear arms and the 6th Amendment right to a jury trial. Accordingly, I understand, appreciate, and accept the analysis and decision of the Nevada Supreme Court on the intersection of these constitutional rights in the context of misdemeanor domestic battery charges which, if proven, result in the loss of the right to own firearms. I do not challenge that conclusion and, in fact, embrace it as an example of how sacred all constitutional rights (e.g., voting, reproductive health, etc.) are. That said, it cannot be denied that this new jury requirement will have very real and practical effects on domestic-violence prosecutions. To properly implement this new jury requirement, more resources are immediately needed, such as access to victim advocates, additional prosecutors and defense attorneys, training for laypersons who serve as justices of the peace, and many other needs. In the meantime, the sad fact remains – domestic violence victims are at risk. And our state is already ranked as one of the worst in the country for domestic violence fatalities. While we seek ways to implement this new jury requirement for misdemeanor defendants, my office will continue leveraging its resources and working with city, county, and federal officials to protect Nevada families from domestic violence.”

 

25 comments on “Editorial: Denial of Second Amendment rights warrants a jury trial

  1. Bill says:

    Thomas, you might want to take a look at Duncan v. Louisiana, whereinThe Supreme Court ruled 7–2 in favor of Duncan by arguing that the right to a jury trial in criminal cases was fundamental and central to the American conception of justice. Administration of criminal justice is a State function. Duncan held that the Due Process Clause of the Fourteenth Amendment requires states to honor requests for jury trials. The Court maintained the common-law exception for “petty crimes,” which are defined as those punishable by a maximum of a $500 fine and six months in prison. In such cases, states are not obligated to provide jury trials. That is a little of the background. I do heartily concur in the Nevada Supreme Court requiring jury trials in thse cases. As for AG Ford, he is, as undoubtedly pandering to what he sees as part of his political base. Contrary to his opinion, this would not abrogate any of the protections afforded to threatened or abused family members.

  2. Sounds like Duncan backed the 1993 case.

  3. […] Denial of Second Amendment rights warrants a jury trial Sep28 by Thomas Mitchell Earlier this month, the Nevada Supreme Court ruled a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their Second Amendment right to keep and bear arms denied. […]

  4. Rincon says:

    Calling a crime with a six month prison sentence petty is like calling rheumatoid arthritis a minor medical problem because it can’t kill you. You or I would never consider any crime with jail time to be petty if we were the accused. It just shows how far the courts are removed from reality.

    They have decided that in order to be fair, a trial has to be long and hugely expensive because they insist on the most perfect procedures possible. Since that makes it impractical to try smaller offenses by jury, they threw out the baby with the bath water, deciding to just discard the right to a jury trial altogether. Making jury trials for smaller offenses shorter and more efficient would preserve the rights of those accused without breaking the bank.

  5. Bill says:

    Our system was an outgrowth of the English Common Law that defined what were petty. The real problem today is that we have too many crimes created by Legislative bodies whose first reflex is to enact a law or regulation that makes some act or omission unlawful. But for the fact that 90% of defendants plead guilty, the present judicial system would collapse if everyone on any given day entered a plea of not guilty. Sometimes the people who enter the guilty pleas are not guilty, It is not a perfect system but generally it works a lot better than other systems.

  6. Steve says:

    Truth is, for a lot of misdemeanors, a not guilty plea gets a pre trial conference with a standard reduction in penalty. Usually barely a slap on the wrist.
    It’s simply too costly to try all those picayune charges.

  7. Rincon says:

    The fact that our system works better than many others should not keep us from trying to improve it.
    I got a little look at how it really works when I was asked to be an expert witness for someone accused of felony animal neglect and cruelty.

    The pet owner had presented his very old and decrepit dog to the humane society for an “inexpensive” euthanasia. The dog had lost its appetite for about 10 days and had been on the decline for months. The owner saw no evidence of any suffering and, hesitating to push the process, elected to keep the dog alive, hoping it would die at home. This is extremely common with pet owners. These owners discovered a large bedsore and this prompted them to euthanize ASAP. Bedsores under fur are hard to detect until they suddenly appear when the skin sloughs off. I see it now and then. The humane society people saw this wreck of a dog and called the prosecutor.

    I have seen many similar situations in my career, and never doubted the good intentions of the owners. I believe the prosecutor didn’t want any newspaper articles saying that she had ignored the humane society’s accusations and so, felt compelled politically to press charges. The statute says that it was a felony only if malice could be proved which, in this case, was clearly impossible, so why charge the owner with a felony? To plea bargain, of course. Lawyers fees to go to trial for a felony charge would have run around $30-50,000, but could easily have gone higher. If the owner lost, then her nursing career would have been up in smoke. If they went to trial, it was likely that a judge would have felt the same PR pressure as the prosecutor, so it was also likely that he would have found them guilty to a reduced misdemeanor charge.

    Their other pets were taken from them (far more cruel in my estimation than the original event), they paid $8,000 in lawyer fees, were fined several thousand dollars and assigned 100 hours of community service each.

    So here’s the so called slap on the wrist which is supposedly standard for a misdemeanor charge.

  8. Steve says:

    Surprise!
    Who couldn’t see this coming?

  9. Rincon says:

    So long as jury selection takes a day or two, jury trials for misdemeanors will be unaffordable. Somehow, I can’t imagine that being the case at the time of the Founding Fathers. What changed and when?

  10. Steve says:

    There are strong arguments TONA would eliminate lawyers in this country. While making everyone legally able to serve in any part of our government. (Currently a law degree and bar association is required for many positions, especially judicial positions.)

    https://constitutioncenter.org/blog/the-case-of-the-missing-13th-amendment-to-the-constitution

  11. Bill says:

    Steve would you do me a favor? I think i understand the Acronym TONA to mean Titles of Nobility Act, the so-called missing Thirteenth Amendment rather than standing for Thousand Oaks Neighborhood Association (I hate acfronyms) but the copy of the lost 13th Amendment that I found did not abolish lawyers. Could you give us a good cite? Thanks.

  12. Steve says:

    Once again, it’s all about interpretation and point of view. EX: “Esquire” being a title of nobility “The honorable xxxxx” being another. I first heard this some 30 years ago from a co worker. Back when the internet was very young.

    Nevertheless:
    I give you David M. Dodge this from the “Conspiracies” link.

    “There are undoubtedly other examples of the monarchy’s efforts to subvert or destroy the United States; some are common knowledge, others remain to be disclosed to the public. For example, David Dodge discovered a book called “2 VA LAW” in the Library of Congress Law Library. According to Dodge, “This is an un-catalogued book in the rare book section that reveals a plan to overthrow the constitutional government by secret agreements engineered by the lawyers. That is one of the reasons why this amendment was ratified by Virginia and the notification was lost in the mail.’ There is no public record that this book exists.” That may sound surprising, but according to The Gazette (5/10/91), “the Library of Congress has 349,402 un-catalogued rare books and 13.9 million un-catalogued rare manuscripts.” There may be secrets buried in that mass of documents even more astonishing than a missing Constitutional Amendment. ”

    Here is the main page.
    http://www.let.rug.nl/usa/essays/general/the-missing-13th-amendment/

  13. Steve says:

    And here we have opposing arguments. (must keep things in perspective, right?) I suspect this thing will live on as long as the Democratic Republic is able to stand.

    https://www.newsweek.com/move-restore-13th-amendment-74391

  14. Bill says:

    Esquire is simply a honorific form of address sometimes even afforded to bankers. It is not anything that is conferred by licensure of any state. To somehow argue that the lost 13th Amendment would somehow bar attorneys altogether or bar them from becoming legislators is quite a stretch. Now if you want to bar bankers, that is another issue that I might support you on.

  15. Steve says:

    Yeah, I didn’t buy it the first time I heard it either.
    The point is a lot of people do buy into this stuff. All in.
    That is why I think it will be with us far after we have all passed on.

  16. Anonymous says:

    Speaking of the 2nd Amendment, if I read it right, seems that the Missouri Senate just passed a law abrogating any Federal attempts to regulate citizen ownership of arms. Seems like the 10th Amendment is being used to insure Missourians continue to have their Second Amendment Rights.

  17. Bill says:

    Sorry…the last comment was mine.

  18. Steve says:

    It goes back to their House where it must be rectified with the original House bill before it can go to the governor who vetoed a similar bill last year. The Senate added penalties the House version does not have.
    This time, the Senate passed their version with the minimum number of votes required to override a veto.

    I predict it does not become law in Missouri.

  19. Bill says:

    I never try to figure out what those damn Missourians will do next. If the Governor does sign it there will undoubtedly be some constitutional fireworks. Seems like in passing this legislation the proponents are giving more credence to those who advocate sanctuary laws in states who claim the state right to nullify or at least ignore federal law. We live in interesting times.

  20. Steve says:

    Indeed. Interesting times. Of the 4 impeachment proceedings in our history, 3 have happened in (most) of our lifetimes. (the last 50 years) That alone should give reason to take a pause and ask ourselves whatever happened to civility?

  21. Bill says:

    Ask Patrick/Anonymous, Sorry Steve. That is a facetious answer to your question. But he does epitomize insult and innuendo.

    I have pondered the same thing. Historically, politically, we have been worse in our political vituperation. Maybe our prosperity and lack of common interests are to blame. After all, these days, diversity is celebrated and we are obsessive about individual identification.

    I have many thoughts on the subject but they are too varied, too diverse and too controversial to explain in 100 words or less and they are only thoughts after all and not necessarily accurate.

    The POTUS, sadly is not much help in teaching us about civil discourse but then again being civil or uncivil does not necessarily mean that you are or are not incompetent or dishonest. I have seen plenty of evil committed in a ‘civil’ manner.

  22. Steve says:

    Interesting thing about the insult tactic.
    Seems to me a whole bunch of left commenting involves insult and innuendo.
    Maybe that’s what makes them so mad at Trump, he’s managed to our insult and sideswipe them at every interaction.
    Hell it is beginning to look like he’s gonna use their impeachment proceedings against them in the campaign.

  23. Steve says:

    That should read “out” not “our”

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