Former Chief Judge of the Southern District of New York, Charles Brieant, used this great phrase, “mouse-milking,” long before it made its way into the urban lexicon. With his goofy mustache and big smile, he would look down from the bench and suggest that we let go of a point we tried so strenuously to make for this reason. We were mouse-milking.
Lawyers can’t seem to stop themselves from mouse-milking. We will fight to the death over the most trivial of points, de minimus non curat lex notwithstanding. Lawyers get hung up on minute details, giving rise to the well-founded allegation that we can’t see the forest through the trees.
This has proven to be the case with the Second Amendment issue arising from the Plaxico Burress case. The most prominent challenger to the its advocates, Doug Berman at Sentencing Law & Policy, who has long been watching whether the Heller decision will filter through the law to the point where it matters, and wondering whether the forces behind it will show up to pursue their agenda when the real fights happen in the trenches.
Comments to Doug’s posts are replete with mouse-milking, nipping at the fringes of the facts of the case (Plax never applied for a NYC carry permit, for example) or the Heller decision (incorporation), ignoring the big picture. If the right to keep and bear arms is a fundamental individual right, and it is because Justice Scalia said so, then it must be given meaning in real life. Fundamental rights are not limitless, perhaps (and this is subject to dispute, past Supreme Court decisions notwithstanding), but we either have rights or don’t. A right, subject to a bunch of caveats, conditions, provisos, exceptions and limitations, that produce the result of having no right at all, isn’t a right.
While I am no particular fan of the notion of people walking around the city with a gun in the waistband, despite the social utility that its advocates claim, I am a big fan of the Constitution. Indeed, I’ve been known to complain from time to time about how the Fourth Amendment has so many exceptions that the rule exists in theory only, there being essentially no practical protection left. That’s what happens when the mouse-milkers take over.
So given the long-fought battle over the definition and scope of the Second Amendment, this is where the fight between the forces favoring constitutional rights over the forces favoring Order should occur. Constitutional rights are big. Bigger than the trivial details raised by naysayers. Forget about whether you, like me, don’t really care about the right to have a snub-nose, and think about whether our Courts should be supporting the rights reserved for the people against the government, or making up excuses for the government to undermine those rights. It’s a big picture thing.
To that end, Doug responds to his commenters:
Let’s get precise here, gang, especially in light of the multiple charges brought back by the grand jury. Plaxico may well deserve punishment and certainly can be constitutionally punished for unjustified risks he created with a loaded gun in the bar, and that’s what the charged crime of reckless endangerment covers. Of course, this crime does not depend on gun possession — he might have had a (sharp-edged) pocket bible and US constitution in his sweatpants and, if he started throwing them around the bar to ward off imagined foes, perhaps he could have been guilty of reckless endangerment under NY law.
But Plaxico could not be constitutionally punished at all simply for possessing a (sharp-edged) pocket bible and US constitution in a NYC bar, and I think we would all be aghast if he was facing 3-1/2 years to 15 years in prison for two counts of possessing these constitutionally protected items. Now, in the wake of Heller declaration that a gun is a constitutionally protected item under the Second Amendment, I ask whether and why we should not be greatly troubled by subjecting Plax to 3.5 or more years in prison simply for possessing this item.
It’s time to put aside our lawyerly compulsion to focus on the trivial and fight it out to the death, and speak in unison in favor of the robust recognition and protection of the few constitutional rights we possess. It’s time we stop accepting that the Bill of Rights, since its enactment, has been the target of a thousand limiting arguments. Rarely do we get a Heller, an expansion of rights, long since limited, toward its original breadth.
And when we’ve finally stood up for rights under the Second Amendment, and our judges have finally chosen to protect and defend the Constitution rather than circumvent it, maybe we can work on the Fourth Amendment next?
I add the following just for fun. The above-quoted comment from Doug concludes this paragraph:
If I were representing Plax, I would contest the gun possession counts on constitutional grounds and then perhaps agree to a deal with a plea to reckless endagerment (sic). This would seem like a sensible resolution on these fact, and one that I think any and all Second Amendment fans should be urgingSomehow, I have a sneaking suspicion that it’s not going to be quite that easy. But I’m sure that if the District Attorney is willing to accept a plea to misdemeanor Reckless Endangerment and let go of the gun felonies, both Brafman and Burress would give it their most serious consideration.
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Once they get their indictment, DA’s are usually not too amenable to misdemeanor dispositions, and that’s putting it mildly. At least that’s the way it is in WNY. Maybe it’s different downstate.
Personally, I think it’s so wrong to put Plax in prison at all that unless that’s off the table it would be fight to the death time for the client, as well as for the 2nd amendment issue.
In any case, this is very high profile and very high stakes stuff.
Yes, John, it’s the same downstate. Was there something in my post that suggested otherwise?
Unlike you, I am kind of a fan of people walking around the street with a gun in the waistband — although I do tend toward pocket carry, rather than IWB. (And I don’t think we really do have a choice about whether or not people walk around the street with a gun in the waistband — just whether that’s going to be restricted to cops, criminals, and the rich and powerful: in NYC, so I heard, the likes of Ronald Lauder, Donald Trump, Edgar Bronfman, Robert De Niro, Harvey Keitel, Howard Stern, Don Imus, and Joseph Bruno all have permits — although, what with the indictment, Bruno may have lost his.)
“If the right to keep and bear arms is a fundamental individual right…then it must be given meaning in real life,” you write.
Damn straight.
As I’ve said privately and publicly, one of things that I admire about you is that you let principle and logic lead you to conclusions that you may not like.
For me, this one is easy. I don’t give a rat’s ass that Burris didn’t apply for an NYC permit, or any of the other quibbling. I don’t really care if his best legal strategy is (as I suspect it might be) for his lawyer to make quiet noises to the prosecution about handling this as a Constitutional issue to leverage a better plea deal, and wants to sucker folks like me into supporting Burris to help put pressure on the DA. His job is to look after his client’s interests, not mine, after all, and if he can bully the DA into turning what would be a multi-year felony into a misdemeanor and a sentence of being slapped lightly with a ruler upon each wrist, well, he should go to it.
But, yeah, if Burris and his lawyer choose to — for whatever their reasons; none of my business if the only reason Mr. Burris comes to the battle out of a desire not to become the new wide receiver at Sing Sing, as sensible a desire as I think that is — get serious about the Constitutional issue, they’ll find that there’s a lot of support in the part of the civil rights community that focuses on the apparently strange-to-some notion that the right of the People to keep and bear arms shall not be infringed.
I might add, having neglected to mention it in the body of my post, that we don’t have to ask permission of the government to exercise our right to free speech, or to remain silent, or counsel, so why place emphasis on Plax’s failure to seek a carry permit? The requirement was premised upon there being no individual 2nd Amendment right. I just want to rid us of that permit tangent so that we can focus on the big picture.
Not really, just the quote from Doug and the comment at the end.
And I wholeheartedly agree with you on the 4th amendment. It almost feels dishonest to raise that issue because their adjudication seems so farcical at this point.
When you are willing to concede the irrelevant stuff, it often bolsters your credibility on the important points.
Plus, you don’t piss off the judge by wasting his time listening to things he doesn’t care about and don’t serve to further your goal.
Yup. I think there is some — weak — argument that the permits I train people to get should be required… but it’s weak. If the RKBA is a real right, it should only be taken from an individual (under proper circumstances, like one’s freedom of association can, to some extent, properly be restricted while in prison after conviction; ditto for your right to remain silent vanishing, temporarily and conditionally, after you’ve been given immunity) not applied for in advance to exercise.
“Excuse me, citizen — you wrote a letter to the editor, and I don’t see a record of you being certified as trained by a government-approved agency and received Permit To Write a Public Letter.”
“Yes, I know, you do have the right not to have troops quartered in your home — but you never got your NoTroops Permit. Off to prison you go.”
“I’m sorry, but Frisbitarianism* isn’t a government-approved religion. Apply first, and we’ll see if you get to exercise it.”
_______________________
*We Frisbitarians worship the Frisbee. We believe that when you die, your soul goes up on the roof and you can’t get it down.
Nope.