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February 23, 2008

Friday follow-up: dead deer and live guns and modes of interpretation

Here are some links to follow-up some points of discussion on Friday:

1.  The recent Wisconsin case upholding a conviction after the defendant pled no contest to having sex with a dead deer is Wisconsin v. Hathaway, and can be accessed here.  Here is a key passage from the court's ruling: "Hathaway first argues his conviction should be reversed because the term 'animal' in WIS. STAT. § 944.17(2)(c) does not include an animal carcass.  He rather convincingly contends that 'animal' means a living creature.  However, Hathaway pled no contest to the charge. A plea of guilty or no contest waives all nonjurisdictional defects and defenses."

2.  I found a terrific short article about the history of the Second Amendment available for download here.  The article highlights, inter alia, that gun control historically has been applied in discriminatory ways in an effort to prevent the poor and religious, ethnic and racial minorities from having access to guns.

3.   On changed perspective concerning the Second Amendment, consider this quotable contrast:

As you review our class readings about legisprudence and theories of statutory interpretation, give serious thought to whether and how these theories of interpretation might also be applied to constitutional provisions like the Second Amendment.  Can you think of strong reasons why a particular mode of interpretation might be especially appropriate (or inappropriate) for enacted legislative statutes, but not for the U.S. Constitution?

February 23, 2008 in Class reflections | Permalink


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The Second Amendment debate is always good because both sides' arguments have some merit. I have yet to research the Constitutional question thoroughly, so a lot of my opinion has been generated by watching the results of a gun ban in Australia.
Here are a few things I found on the net - The sources aren't the most reliable thing in the world.
One article had a great discussion about how much the gun buyback program cost Australia. After all, if the SC does not find an individual right to possess firearms and Congress passes some legislation to take those weapons (assuming they have Article I power to do so) then there is going to have to be some compensation to those individuals with their weapons - the takings clause of the Constitution would require compensation. I'm not arguing that this alone should prevent taking weapons from people if it is concluded that gun ownership is not a right - but this is one of those things that people tend to overlook when implementing a program.
Anyways - http://www.gunsandcrime.org/auresult.html
Then there is always the statistics that indicate a severe increase in crime with the ban on weapons:
Crime Up Down Under - http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=15304
The Rebirth of Freedom
I'm not going to try and portray these links as non-political websites just reporting the facts, because they are both clearly political in nature. But there argument has some merit.

Posted by: Alex | Feb 24, 2008 8:03:08 AM

The dead deer case is clearly disturbing and Hathaway clearly needs medical help. Hopefully, the medical treatment he receives will be better than the legal council he recieved in this case. He committed no crime, yet pled no contest to a statute that does not apply to his case. This caused him to forfeit all "nonjurisdictional defects and defenses." Sounds like malpractice!!

While there is no excuse for this type of legal error, I find compassion for the attorney. I hope I never have to argue in front of a judge and jury that "my client had sex with a DEAD deer, not a live deer."

Anyway, maybe the best possible outcome in this case depended on the attorney making this error. The attorney gets a wakeup call and hopefully never makes a dumb mistake like this again, while the client should get medical help that he may not have otherwise recieved had he walked.

Posted by: Chris Stanley | Feb 24, 2008 11:43:40 AM

I was a bailiff at the Moot Court competition this week and was quite surprised at how strong the arguments were on both sides in the Heller case. I really had not thought much of the "well-regulated militia" portion of the second amendment beyond it being a prefatory clause. Now that I've heard the arguments on both sides, I'm not so sure that there wasn't a reason behind putting that in the text. So was the intention a collective or individual right? This is the originalist question.

But I'm not sure that is the question that should be looked at. Maybe how the founders viewed it 230 years ago isn't as pertinent to American society as some make it out to be. I think that tradition since the Bill of Rights was written should inform the interpretation of the amendment as much as the history behind its adoption. Is the tradition in America one of individual or collective rights? I'm thinking probably the former.

Posted by: Michael Wilt | Feb 24, 2008 7:39:38 PM

I would disagree with Chris on the malpractice issue. The attorney tried to have the charged dismissed because the deer was dead in the first place. Once this was denied, he probably took a plea bargain that protected his client from a harsher sentence.

Posted by: Christina | Feb 25, 2008 10:15:54 AM


My understanding was that the attorney advised the client to plead no contest to the charge, which thereby caused him to forfeit all "nonjurisdictional defects and defenses." After this, the attorney was hamstrung and couldn't win the case even though the deer was not an animal and not protected by law. If this is the case, I think this would be malpractice.

Posted by: Chris Stanley | Feb 26, 2008 10:58:10 AM

From the link above it made it sound like he did this only after he tried to say a dead deer isn't a deer thing :
"He moved to dismiss the complaint, arguing the statute did not apply to dead animals. The
circuit court denied the motion. Hathaway then moved to suppress his statement
to Poskozim. He argued his statement was not obtained from a legitimate source
wholly independent of his inadmissible compelled statement given to the
probation officers. The court denied Hathaway’s motion and Hathaway
subsequently pled no contest to the charge. "

In any case, it is probably a debatable topic that could go either way.

Posted by: Christina | Feb 26, 2008 3:49:22 PM

Just in case anyone was worried: Dutch parliament bans sex with animals!

"AMSTERDAM, Netherlands - The Dutch parliament voted unanimously Thursday to outlaw bestiality and pornography involving animals.

Sex with animals and the making of animal pornography now will carry a punishment of up to six months in jail under the measure.

Current Dutch law forbids bestiality only when animals are found to have been mistreated.

Animal pornography is explicitly forbidden in 80 countries and pornographers had lobbied fiercely against a Dutch ban, said lawmaker Harm Evert Waalkens, who introduced the measure.

"The Netherlands is now a magnet for perversities and we don't want that," Waalkens said."

Posted by: Amanda McNeil | Mar 13, 2008 4:13:21 PM

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