Saturday, April 27, 2013

GUN CONTROL IN THE GARDEN STATE: THE STATE SENATE SETS ITS SIGHTS ON MODIFYING NEW JERSEY GUN LAWS

Gun Control in The Garden State:
The State Senate Sets Its Sights on Modifying New Jersey Gun Laws

By: Justin M. Smigelsky, Esq.

April 27, 2013

            In response to recent tragedies, such as the tragic shooting deaths of twenty elementary-school children in Newtown, Connecticut this past December, the New Jersey legislature has responded with a proposed package of gun-control bills that may serve as a national model for gun safety. A task force recently assembled by Governor Christie has suggested several revisions to current state gun laws, including prevention of straw purchases of illegal guns from out of state and a presumption against granting gun permits to individuals who have been involuntarily committed to mental institutions. Moreover, the New Jersey Senate plans to introduce a “centerpiece” bill which would create a new photo identification for gun buyers to assist in background checks, mandate firearms safety training to those seeking a permit, and require immediate revocation of gun permits upon involuntary mental health commitment or criminal conviction.

While some New Jerseyans applaud the efforts of the New Jersey Senate, others, including Scott Back, the Executive Director of the Association of New Jersey Rifle and Pistol Clubs, claim New Jersey does not need tougher gun-control laws. According to Bach, “New Jersey already has some of the toughest gun laws in the nation. More of the same will not stop another criminal or a madman – their only impact is on the law-abiding.”

As the result of the recent tragedies in Newtown, Connecticut and Aurora, Colorado the Second Amendment is more hotly debated than ever before. In addition, daily gun-related deaths in New Jersey, including the recent accidental shooting of a six-year-old boy in Toms River, have the effects of gun violence hitting closer to home. However, as the result of state sovereignty issues, evolving technology, differing opinion on constitutional interpretation and legal theory, and the intense passion evoked on both sides of the issue, gun control will remain at the forefront of national debate well into the 21st century.

Tension between the Federal Government and state governments has been in existence since at least 1837, when Georgia passed a law banning handguns. As the Georgian Constitution did not contain an equivalent to the Second Amendment, the Supreme Court of Georgia, in Nunn v. State of Georgia, deemed that the right provided under the U.S. Constitution left the Georgia law null and void. In striking down the 1837 Georgian law, the Nunn court asked:

Does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

            Only a few other cases concerning gun control have managed to reach the U.S. Supreme Court, leading to confusion and a lack of clarity in regards to the Second Amendment. In the 2008 landmark decision of District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for traditional lawful purposes, refuting the argument that the right only applies to members of the militia. Two years later, in McDonald v. Chicago the Court cleared up the uncertainty left in the wake of Heller, holding that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and, therefore, applies to the states. Despite these landmark decisions, many questions have been left unanswered by the lack of judicial attention paid to the Second Amendment in approximately 225 years since its ratification. In fact, only the Third Amendment, which concerns the quartering of soldiers, has received less attention from American courts. 

While many opponents of gun control assert that the Constitution grants an absolute right to possess firearms, technological advancement has steadfastly fueled the debate. In response to an assassination attempt on FDR in 1934, Congress passed the National Firearms Act to regulate automatic weapons, which at the time were considered a modern advancement. Similarly, in 1939 the United States Supreme Court upheld a law mandating registration of shotguns because the weapons were not deemed to be ordinary arms. Modern issues created by evolving technology include whether American citizens have the “right to bear” concealed weapons, assault weapons, and even explosives. New developments in weaponry will certainly continue to stir public passion on the topic for years to come.

            The controversy surrounding the Second Amendment is further complicated by differing constitutional interpretations. Is the Constitution a “living and breathing” document, capable of adapting when necessitated by the times? Or, should the Constitution be strictly construed to honor the intent of the drafters? Regardless, as little documentation regarding the Second Amendment has survived, the intent of James Madison and the original drafters is nearly impossible to decipher. Furthermore, differing theories as to the role of law in our society also contribute to the debate. Although the American legal and political systems are oriented towards protection of the individual, the law cannot provide for the absolute protection of the individual because legitimate state interests are often controlling.


Sources:

Brooks, Chad. “The Second Amendment & the Right to Bear Arms.” LiveScience.com. http://www.livescience.com/26485-second-amendment.html>.

Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998).

District of Columbia v. Heller, 554 U.S. 570 (2008).

Friedman, Matt. “N.J. Senate Democrats to Introduce 12 New Gun Control Measures.” The Star-Ledger, April 12, 2013. http://www.nj.com/politics/index.ssf/2013/04/senate_dems_to_introduce_12_ne.html

Longley, Robert. “Gun Control Timeline – U.S. Government Info/Resources.” http://usgovinfo.about.com/blguntime.htm>.

Lott, John R. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. Chicago: University of Chicago, 1998.

M. Ethan Katsh & William Rose. Taking Sides: Clashing Views on Controversial Issues. Dushkin/McGraw-Hill (9th Ed. 2000).

McDonald v. Chicago, 561 U.S. 3025 (2010).

Murphy, Jenna. ”Second Amendment: Why Is There Controversy Surrounding Gun Control?” April 15, 2013. (On file with the author)

“N.J. Governor Proposes Measures to Curb Gun Violence.” USA Today, April 19, 2013. http://www.usatoday.com/story/news/nation/2013/04/19/christie-guns-proposal-new-jersey/2098007/

Nunn v. State of Georgia, 1 Kelly 243 (Ga. 1846).


Links of Interest:







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Saturday, April 13, 2013

REVISITING THE STOLEN VALOR ACT: MILITARY SERVICE MISREPRESENTATIONS, FALSE STATEMENTS ABOUT ONE’S OWN CREDENTIALS, AND THE RIGHT TO LIE

REVISITING THE STOLEN VALOR ACT:
MILITARY SERVICE MISREPRESENTATIONS, FALSE STATEMENTS ABOUT ONE’S OWN CREDENTIALS, AND THE RIGHT TO LIE

By:  Justin M. Smigelsky, Esq.
&
Ashley Murphy
J.D. Candidate 2013, Widener University School of Law

April 13, 2013

The General, ever desirous to cherish a virtuous ambition in his soldiers, as well as to foster and encourage every species of [m]ilitary merit, directs that whenever any singularly meritorious action is performed, the author of it shall be permitted to wear on his facings, over his left breast, the figure of a purple heart in purple cloth. . .Not only instances of unusual gallantry, but also of extraordinary fidelity and essential service in any way shall meet with due reward.

- George Washington
General Orders Issued at Newburgh on the Hudson (Aug. 7, 1782)

           In June of 2012, the Unites States Supreme Court held in a six-to-three decision that the Stolen Valor Act (of 2005), which prohibited false statements about the receipt of military accolades, is unconstitutional. Justice Kennedy announced the plurality opinion of the Court, reasoning that false statements of fact do not fall within the categorical exceptions to protected speech, and, therefore, the Stolen Valor Act would only be upheld if the Act withheld strict scrutiny. The Court ultimately concluded that the Act did not survive strict scrutiny analysis because the Government had failed to demonstrate that the statute was necessary to protect the integrity of the military system of honors.
The highly anticipated decision as to whether there is a right to lie about one’s military service demonstrated the rift between those who claim the Stolen Valor Act overreaches, proponents of a “big tent” for First Amendment protection, and the 65% of Americans that favor a law that criminalizes false claims about military honors or awards. Although it was uncertain as to how the Court would ultimately decide in the days leading up to the decision, the impact of the Supreme Court’s holding will certainly have “an impact far beyond the Stolen Valor Act.”
If adopted, the rule that Stolen Valor Act proponents advocate would have significantly enlarged the scope of existing categorical exceptions to speech protected by the First Amendment. If the Act was upheld as constitutional, knowingly false statements of fact would be proscribable and “there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status…or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, [or] is a virgin.” On the other hand, if knowingly false statements are protected, numerous statutes that currently proscribe false statements of fact would be called into question: false statements relating to the sale of any mortgage, to any Federal land bank, false statements made under oath, in any case, proceeding, or matter relating to naturalization, citizenship, or registry of aliens, as well as many other statutes pertaining to knowingly false statements. According to Stolen Valor Act proponents however, the greatest detrimental impact of striking down the Act and creating a constitutional “right to lie” falls upon the American military heroes that have received medals of valor, including the eighty-eight living recipients of the Medal of Honor, to whom we owe a debt beyond repayment.
            The sad fact is most people lie about some aspects of their lives from time to time. The problem is in distinguishing between lies that are “inevitable in free debate. . .[that] must be protected if the freedoms of expression are to have the breathing space that they need to survive,” and the knowingly false statements that are within the government’s reach. While advocates of a “right to lie” believe that alternatives to speech suppression do exist to prevent phonies from misrepresenting military achievement, and “nobody reveres true heroes less because [of] a few phonies,” it is difficult to deny that the United States is experiencing an epidemic of knowingly false statements about military service, honors, or awards, military service misrepresentations by politicians, and credential falsification.
            In February of 2013, the campaign to criminalize the act of lying about one’s military accolades, particularly when done “with intent to obtain money, property or other tangible benefit,” was revitalized when the Stolen Valor Act of 2012 was introduced into the United States Senate. The revised Stolen Valor Act was written to avoid the First Amendment issues outlined in the Supreme Court’s decision in United States v. Alvarez this past summer, in particular, the issue as to whether the Act is narrowly tailored. Senator Thad Cochran of Mississippi has expressed optimism that Congress will enact the revised Stolen Valor Act, stating “Congress came up short last year, but I am optimistic that the Senate and House will pass the legislation.”
While it may be incredible to suggest that heroism, sacrifice, or motivation of our brave servicemen and women is motivated in any way by the receipt of medals and awards, as this is antithetical to the nature of their training, we, as a nation, must protect the meaning and integrity of our military accolades from demeaning exploitation by frauds.

Notes of Interest

«      In the movies Forrest Gump, The Karate Kid, and The Next Karate Kid, actors portray winners of the Congressional Medal of Honor. Could actors/directors/writers be prosecuted under the Stolen Valor Act of 2005?
«      Three-out-of-four adults (74%) say they are at least somewhat concerned about people making false statements about their military record. Most Americans Favor Law Against Those Who Falsely Claim Military Honors, Rasmussen Reports (August 26, 2010), http://www.rasmussenreports.com/public_content/politics/general_politics/august_2010/m.
«      According to a 2002 FBI report, in the United States, approximately 500,000 people falsely claim to have a college degree, while 95% of college students in a recent survey stated that they would lie to get a job, with 41% stating that they had already done so. John E. Matejkovic & Margaret E. Matejkovic, Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions, 39 Creighton L. Rev. 827, 828 (2006).
«      Many individuals have been prosecuted for lying about military service, achievements, and awards. Army Reserve Major Anthony Angelo Calderone and Jesse MacBeth are two examples of recent prosecutions for knowingly false statements regarding military service. Calderone was sentenced to five months in prison for making false statements about his tours of duty, qualifications, and awards. Matthew Cox, Major Gets 5 Months for Faking Awards, Army Times (Feb. 22, 2008), http://www.armytimes.com/news/2008/02/army_fakersentence_080219w/. Jesse MacBeth was sentenced to five months in prison for falsely claiming he was a decorated war hero and making false statements to the Department of Veterans’ Affairs. Jennifer Sullivan, Man Who Posed as Military Hero Sentenced to 5 Months in Prison, Seattle Times (Sept. 27, 2007, 12:00 AM), http://seattletimes.nwsource.com/html/localnews/2003895483_webmacbeth21m.html.
«      There have been numerous instances of politicians being caught making false statements about their military service. Congressman Mark Kirk and Attorney General Richard Blumenthal are recent examples of politicians being caught “misremembering,” “misspeaking,” or “misstating” military service and commendations. When it was revealed that Kirk had taken sole credit for an award given to his former Navy intelligence unit, he said, “I simply misremembered it wrong.” Robert Costa, Can Mark Kirk Bounce Back, National Review Online (June 8, 2010, 4:00 AM), http://www.nationalreview.com/articles/229907/cam-mark-kirk-bounce-back/robert-costa. Although he was a member of the Marine Corps Reserves during Vietnam, Blumenthal “misspoke” about his service in representing that he had served “in” Vietnam. Christopher Keating, Richard Blumenthal Defends Himself On Vietnam War Statements: Says He Misspoke and Regrets It, Courant.com (May 18, 2010, 2:28 PM), http://blogs.courant.com/capital_watch/2010/05/richard-blumenthal-holds-press.html.
«      Rick Strandlof, the former executive director of the Colorado Veterans Alliance, was “front and center” during many political campaigns. He even spoke at a Barrack Obama veterans rally outside the Capitol. However, Strandlof was not really a veteran wounded by a roadside bomb in Iraq, as he originally claimed, but did spend time in a mental hospital. Michael Riley, Dems Red-faced Over Veteran Imposter, Denver Post (May 15, 2009).


Sources
  1. George Washington, General Orders Issued at Newburgh on the Hudson (Aug. 7, 1782), available at http://www.elijahchurchills.com/purple%20heart.htm.
  2. United States v. Alvarez, 567 U.S. ___ (2012).
  3. United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010).
  4. United States v. Strandlof, No. 09-cr-00497-REB, 2010 U.S. Dist LEXIS 82662 (D. Colo. July 16, 2010).
  5. Vincent Carroll, Carroll: Free Speech for Liars, DenverPost.com (Sept. 19, 2009, 1:00 AM), http://denverpost.com/commented/ci_16096264?source=commented-opinion.
  6. Most Americans Favor Law Against Those Who Falsely Claim Military Honors, Rasmussen Reports (August 26, 2010), http://www.rasmussenreports.com/public_content/politics/general_politics/august_2010/m.
  7. Proposed Brief of Amicus Curiae Eugene Volokh, United States v. Strandlof, No. 09-cr-00497-REB (D. Colo. 2010).
  8. Rees Lloyd, Stolen Valor- Stolen Constitution, NewsWithViews.com (Aug. 29, 2010), http://www.newswithviews.com/Lloyd/rees104.htm.
  9. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
  10. United States v. Perelman, No. 2:09-cr-00443-KJD-LRL, 2010 U.S. Dist. LEXIS 85475 (D. Nev. June 1, 2010).
  11. Farid Sharaby, Government: Chapter 93: Expanding the Stolen Valor Act within California, 41 McGeorge L. Rev. 619 (2010).
  12. United States v. McGuinn, No. 07 Cr.471 (KNF), 2007 U.S. Dist. LEXIS 77059 (S.D.N.Y. Oct. 18, 2007).
  13. Order for Supplemental Briefing, No. 09-cr-00497-REB, 2009 U.S. Dist. LEXIS 122608 (D. Colo. Dec. 18, 2009).
  14. Dan Elliott, Stolen Valor Act May Go to Supreme Court After Rulings in Denver, San Francisco, Huffington Post.com (Oct. 11, 2010), http://www.Huffingtonpost.com/2010/10/11/stolen-valor-act-may-go-t_n_757799.html.
  15. Nathan Koppel, Legal Battle Over Stolen Valor Act Heats Up, Wsj Blogs (Oct. 11, 2010), http://blogs.wsj.com/law/2010/10/11/legal-battle-over-stolen-valor-act-heats-up/.
  16. Stolen Valor Act, 18 U.S.C. § 704 (2006).
  17. Mark Seavey, Lying to America: Stolen Valor Act Must Be Restored, The Hill.com  (Oct. 18, 2010), http://thehill.com/blogs/congress-blog/judicial/114871-lying-to-america-stolen-valor-act.
  18. Overturning the Stolen Valor Act, Los Angeles Times (Aug. 25, 2010), http://articles.latimes.com/2010/aug/25/opinion/la-ed-medal-20100825.
  19. Diane Saunders, Pretend Soldier Gets Prison Time for Lies, Eastern Arizona Courier (October 1, 2007), http://eacourier.com/articles/2007/10/01/local_news/news04.txt.
  20. Texas Man Who Used Bogus Marine Record to Gain Army Rank Gets 6 Months in Prison, FoxNews.com (Sept. 17, 2010), http://www.foxnews.com/us/2010/09/17/texas-man-used-bogus-marine-record-gain-army-r.
  21. Office of the Under Secretary of Defense, Report to the Senate and House Armed Services Committees On a Searchable Military Valor Decorations Database (Apr. 2, 1999).
  22. C. Douglas Sterner, Response to the: Report to the Senate and House Armed Services Committees On a Searchable Military Valor Decorations Database (1999).


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