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.”

 

Newspaper column: High court should stand firmly for free speech

Jack Phillips decorates a cake. (Reuters pix via WaPo)

It has long been agreed that the First Amendment right to free speech includes the right to not be compelled to speak, but this past week the U.S. Supreme Court appeared to skirt this simple premise, though it ruled in favor of a Colorado cake baker who refused in 2012 to create a wedding cake for a same-sex couple for a different reason.

The court’s 7-2 ruling in favor of Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., instead hinged on the fact the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”

Kennedy added that the commission’s disparate treatment of Phillips violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

“The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion. … Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs,” Kennedy said.

As usual, Justice Clarence Thomas countenanced no tolerance for such nuanced, too-narrow rulings and tackled the matter head on in a concurrence that was joined by Justice Neil Gorsuch. Thomas said Phillips rightly prevailed on his free exercise claim, but the court failed to address his free speech claim.

Thomas wrote that the appellate court rationalized that Phillips was defying Colorado’s public-accommodations law and not acting as a speaker. “This reasoning flouts bedrock prin¬ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak,” he concluded.

Thomas said public-accommodation laws may regulate conduct, but not expression of ideas, citing a case in which the high court ruled unanimously that the sponsor of a St. Patrick’s Day parade could not be forced to include a group of gay, lesbian, and bisexual Irish-Americans, because that violated the sponsor’s right to free speech.

“While this Court acknowledged that the unit’s exclusion might have been ‘misguided, or even hurtful” … it rejected the notion that governments can mandate ‘thoughts and statements acceptable to some groups or, indeed, all people’ as the ‘antithesis’ of free speech …” Thomas explained.

He further noted that the court has held that communication of ideas can be conveyed by symbolism as well as words — such as nude dancing, burning the American flag, flying a flag upside-down, wearing a military uniform, wear¬ing a black armband, conducting a silent sit-in, refusing to salute the flag and flying a plain red flag.

Thomas said that the court’s previous ruling that the Constitution protects the right to same-sex marriage does not mean those who disagree are not entitled to express that opinion.

“Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” Justice Thomas concluded. “But, in future cases, the freedom of speech could be essential to preventing (the right to same-sex marriage) from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

There are cases waiting in the wings that might afford an opportunity to fully recognize freedom of speech when it comes to whether a business may be compelled to offer its services for same-sex weddings — these include a florist in Washington state, a web designer in Colorado and a calligrapher in Arizona.

Hopefully, the court will be more forthright and specific in favor of free speech in on of those or some other case.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Forced speech is not free speech

On Tuesday the U.S. Supreme Court will hear a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on professionals is a violation of the free speech guaranteed by the First Amendment.

NIFLA is the National Institute of Family and Life Adcovocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, called the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices encouraging women to contact the state to receive information on free or low-cost abortions — forced speech.

According to a synopsis of the case posted the high court website: “The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a ‘circuit split’ with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.”

The question before the court is: “Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.”

In an amicus brief filed on behalf of the Cato Institute Ilya Shapiro argues that the law clearly is a free speech violation due to requiring certain content.

Shapiro writes, “The Act’s requirements are both facially content-based — because they compel speech — and discriminate based on view- point. Both aspects require strict scrutiny, which the disclosure requirements cannot survive because (1) ex- emptions to the disclosure requirements illustrate that they are underinclusive, and (2) any number of other methods for distributing the same information would not impose significant burdens on speech.”

Whatever one’s stance on the issue of abortion is irrelevant. This is clearly a free speech issue because it dictates the content of one’s speech, no matter the beliefs, knowledge and conscience of the speaker.

Shapiro reminds the court that it previously has rejected mandated recitation of selective facts, explaining, that “either form of compulsion burdens protected speech. Thus, we would not immunize a law requiring a speaker favoring a particular government project to state at the outset of every address the average cost overruns in similar projects, or a law requiring a speaker favoring an incumbent candidate to state during every solicitation that candidate’s recent travel budget.”

Shapiro then goes on to cite an example of the “truthful” speech that could be compelled if the California law is upheld:

Could a state have required physicians to tell any pregnant patient without health insurance who was contemplating an abortion that she should vote for Barack Obama in the 2012 presidential race if she was concerned about getting access to low-cost health insurance for herself and her unborn child through a state health-insurance exchange? This statement is truthful, non-misleading, and relevant to the patient’s medical decision.

If the state wishes to to convey its message about abortion availability it has numerous ways to do so without forcing certain people to be the conduit for it.