Ohh for god's sake Seahorse. Don't tell me you've gotten sucked in by Dukey's paranoiatron. Those definitions of "force" aren't from HR1955. Those are the definitions some moron found on dictionary.com. Are you going to tell me that under MCA 45-3-102 I'm only allowed to argue with someone if it's necessary to prevent them from illegally arguing with me? $this->bbcode_second_pass_quote('', 'M')CA 45-3-102
Use of force in defense of person:
A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force.
PeakOil is You
Our Constitution
Re: Our Constitution
by smallpoxgirl » Fri 11 Apr 2008, 17:45:58
Of course not. MCA 45-3-102 is referring to physical force as is HR1955. It's a very bad bill, but as usual Dukey is off in the paranoia ether somewhere.
As a general rule, it's wise to avoid clicking on those youtube video's Dukey so promiscuously posts. I'm convinced that I loose 5 IQ point's every time I click on one.
"We were standing on the edges
Of a thousand burning bridges
Sifting through the ashes every day
What we thought would never end
Now is nothing more than a memory
The way things were before
I lost my way" - OCMS
Of a thousand burning bridges
Sifting through the ashes every day
What we thought would never end
Now is nothing more than a memory
The way things were before
I lost my way" - OCMS
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Re: Our Constitution
by seahorse2 » Fri 11 Apr 2008, 18:01:55
SPG,
The video correctly points out that two problems in the text of the bill: (1) the use of "or" to differentiate that "force" and "violence" are not the same thing; (2) that the term "force" is not a defined term.
Now, I can say that as a lawyer I often have to deal with undefined terms in legislation, which causes all kinds of problems for the courts. Unless the Congressional record gives some hint as to its meaning, courts will often use accepted common definitions of the words contained in legislation - yes, the courts will use dictionaries if necessary. I had a decision on appeal which cited the dictionary definition to define a term. Sounds crazy? Its because statutes are poorly drafted.
Courts will sometimes use "Black's Law Dictionary" to define common legal terms. So, I went to Black's 5th Edition and looked up the definition of "force" and it gave the following: "Power dynamically considered, that is, in motion or in action: constraining power, compulsion; strength directed to an end." There were a few other analogies for torts etc., but the problem pointed out in the video stands - the proposed legislation differentiates force from violence and does not define "force" for purposes of the legislation.
Below is a link to the legislation. It verifies the language cited in the video is the language used in the current version of the house bill.
Lanuage Text
So, I see a problem in the language of this bill. I see a problem because, as pointed out by the video, undefined terms allow Federal authorities to argue they have power that is otherwise prohibited by the Bill of Rights. Now, ultimately the Courts may void the language of the law as being unconstitutional, but I would have to be the individual that is the test case. Further, its easier to protect your rights by not allowing this stuff into law than fighting it afterwards.
I think this is potentially more serious than you are giving it credit for. The Bush administration has taken advantage of every implied power it can argue it has, so, all the more reason to worry that gov't will take advantage of any implied power it has been given.
I also don't understand the analogy your trying to make with your state criminal definition allowing force to defend against force. In the state statute you give, its saying one can use force to defend oneself against unlawful force. This is common, but wow does that even apply to a law wherein the Federal govt' is criminalizing "terrorism" by "force" that isn't defined as "violence." In the state case, there is no differentiation between force and violence as in the Federal statute. In fact, every state I know has defined criminal terms to include assault (usually threat of force), battery (usually the actual use of force) etc. I'm not following.
The video correctly points out that two problems in the text of the bill: (1) the use of "or" to differentiate that "force" and "violence" are not the same thing; (2) that the term "force" is not a defined term.
Now, I can say that as a lawyer I often have to deal with undefined terms in legislation, which causes all kinds of problems for the courts. Unless the Congressional record gives some hint as to its meaning, courts will often use accepted common definitions of the words contained in legislation - yes, the courts will use dictionaries if necessary. I had a decision on appeal which cited the dictionary definition to define a term. Sounds crazy? Its because statutes are poorly drafted.
Courts will sometimes use "Black's Law Dictionary" to define common legal terms. So, I went to Black's 5th Edition and looked up the definition of "force" and it gave the following: "Power dynamically considered, that is, in motion or in action: constraining power, compulsion; strength directed to an end." There were a few other analogies for torts etc., but the problem pointed out in the video stands - the proposed legislation differentiates force from violence and does not define "force" for purposes of the legislation.
Below is a link to the legislation. It verifies the language cited in the video is the language used in the current version of the house bill.
Lanuage Text
So, I see a problem in the language of this bill. I see a problem because, as pointed out by the video, undefined terms allow Federal authorities to argue they have power that is otherwise prohibited by the Bill of Rights. Now, ultimately the Courts may void the language of the law as being unconstitutional, but I would have to be the individual that is the test case. Further, its easier to protect your rights by not allowing this stuff into law than fighting it afterwards.
I think this is potentially more serious than you are giving it credit for. The Bush administration has taken advantage of every implied power it can argue it has, so, all the more reason to worry that gov't will take advantage of any implied power it has been given.
I also don't understand the analogy your trying to make with your state criminal definition allowing force to defend against force. In the state statute you give, its saying one can use force to defend oneself against unlawful force. This is common, but wow does that even apply to a law wherein the Federal govt' is criminalizing "terrorism" by "force" that isn't defined as "violence." In the state case, there is no differentiation between force and violence as in the Federal statute. In fact, every state I know has defined criminal terms to include assault (usually threat of force), battery (usually the actual use of force) etc. I'm not following.
Last edited by seahorse2 on Fri 11 Apr 2008, 18:13:34, edited 1 time in total.
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seahorse2 - Expert
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Re: Our Constitution
by smallpoxgirl » Fri 11 Apr 2008, 18:11:09
$this->bbcode_second_pass_quote('seahorse2', 't')he proposed legislation differentiates force from violence and does not define "force" for purposes of the legislation.
That doesn't strike me as surprising at all. If someone chains themselves to themselves to the door of an abortion clinic to prevent people getting in, that's force. It's not violence unless they bite the security guard in the process.
As a lawyer, would you say that I risk being prosecuted under MCA 45-3-102 if I write a letter to my senator trying to persuade them to vote no on HR1955? It seems to me that MCA 45-3-102 places much more severe restrictions on me than HR1955 since I'm only allowed to use force in self defense.
"We were standing on the edges
Of a thousand burning bridges
Sifting through the ashes every day
What we thought would never end
Now is nothing more than a memory
The way things were before
I lost my way" - OCMS
Of a thousand burning bridges
Sifting through the ashes every day
What we thought would never end
Now is nothing more than a memory
The way things were before
I lost my way" - OCMS
-
smallpoxgirl - Expert
- Posts: 7258
- Joined: Mon 08 Nov 2004, 04:00:00
Re: Our Constitution
by seahorse2 » Fri 11 Apr 2008, 18:21:37
$this->bbcode_second_pass_quote('smallpoxgirl', '')$this->bbcode_second_pass_quote('seahorse2', 't')he proposed legislation differentiates force from violence and does not define "force" for purposes of the legislation.
That doesn't strike me as surprising at all. If someone chains themselves to themselves to the door of an abortion clinic to prevent people getting in, that's force. It's not violence unless they bite the security guard in the process.
As a lawyer, would you say that I risk being prosecuted under MCA 45-3-102 if I write a letter to my senator trying to persuade them to vote no on HR1955? It seems to me that MCA 45-3-102 places much more severe restrictions on me than HR1955 since I'm only allowed to use force in self defense.
No, under you state criminal statute, writing letters is constitutional. First, you clearly have a right to free speech, so the Montana statute you cite cannot criminalize free speech. So, writing a letter is not criminal. Second, under your Montana criminal code, I'm confident that it has definitions of most, if not all, of its criminal terms to include assaults (threat of violence), batteries (actual violence) etc. Further, it may define lethal force and unlawful lethal force. If the code doesn't define it, I'm confident the case law has defined it.
You will also notice that, unlike the Federal bill, the state statute you cite does not differentiate between force and violence; thus, one would assume and I believe your courts have interpreted force to mean physical violence as opposed to the exercise of free speech. The difference that jumps out at me is the Federal bill tries to differentiate "force" from "violence" using the term "or" and never defines what it means by "force." This is a serious drafting problem that ultimately becomes someone's legal problem down the road. It does create a constitutional issue if misapplied. Why leave it to the Courts to decide? Why create a problem? There is a problem in the way this is drafted.
The devil is always in the details. Leaving this undefined term in this bill would be like having a bad sponge count after closing an abdominal surgery.
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seahorse2 - Expert
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