DA says he won’t prosecute gun laws

[mrjarrell]

In the wake of McDonald and Heller a Wisconsin DA has taken the decision to not prosecute legal gun owners. Needless to say the local cops are having none of it and have said they'll continue to harass and kidnap people for exercising their rights. One has to wonder if the DA will put a stop to that.

via LaCrosse Tribune

In the wake of a U.S. Supreme Court decision, Jackson County's district attorney said he will no longer prosecute some state weapons laws, including a ban on concealed weapons.
Gerald Fox said in a news release the court's ruling "immediately renders some of Wisconsin's current laws unconstitutional" and therefore his office will not accept police referrals for violations of statutes that prohibit carrying concealed weapons, loaded firearms in vehicles, possession of firearms in public buildings or bars and the possession of switchblades.
"All of these statutes constitute unjustifiable infringements on the fundamental right of every law-abiding American to arm themselves for self-defense," Fox wrote in a release posted on the county's website. "Does preventing the barkeep from protecting herself when she carries the bank bag home from the tavern make sense? Not here, not anymore."
Black River Falls police Chief Don Gilberg said he disagrees with Fox's assessment and that his officers will continue to enforce state and local gun laws.
"We don't think it's a good public policy," Gilberg said. "It'll make our community less safe. We don't want people walking into the courthouse or city hall or god knows where (carrying firearms)."
Attorney General J.B. Van Hollen declined to comment on Fox's announcement, except to say through a spokesman that such decisions are a matter of prosecutorial discretion.

More at the source.

 

[PatriotPride]

GOOD! It's refreshing to see a member of the Criminal Justice system take a stand.

 

[Greatestsin]

GOOD! It's refreshing to see a member of the Criminal Justice system take a stand.

Except that he'll probably get canned over it

 

[PatriotPride]

"Attorney General J.B. Van Hollen declined to comment on Fox's announcement, except to say through a spokesman that such decisions are a matter of prosecutorial discretion."

That indicates to me that there is not much of a case to fire him. It is always at the prosecutor's discretion (as far as I can remember) as to whether or not they choose to prosecute. They can turn down cases at their discretion.

 

[Kirk Freeman]

Why does the media always go the Attorney General? Do they think the AG is some superprosecutor? Does Wisconsin allow the AG to act as some sort of uberCLEO?

Maybe the Attorney General should wear some sort of uniform, like the Surgeon General, and march into Prosecuting Attorneys' offices and demand that they do pushups.

We need an INGO contest for Attorney General uniform,

Well, the AG candidates in Indiana always appear in courtrooms in their campaign ads.

We don't think it's a good public policy," Gilberg said. "It'll make our community less safe. We don't want people walking into the courthouse or city hall or god knows where (carrying firearms)."

And police are included in "people"? Fine.

Okey-dokey, Chief Wiggum, I hereby demand that you immediately disarm your department. No guns for cops then.

 

[Glock21]

Wow - a man who honors his oath of office. Imagine that.

 

[txgho1911]

Maybe the uniform should look British?

 

[E5RANGER375]

sounds awesome!!! eat that jack booted thug liberals

 

[JBusch8899]

.

 

[downzero]

Actually it's quite possible that he can be removed from his position for refusing to follow the law.

No government official is above the law, even if what he does is politically popular.

There is no legal basis for what he's doing, either. It is merely political posturing.

 

[JBusch8899]

.

 

[downzero]

Are you stating that the DA isn't following the law?

Not exactly. I am saying that his supposed justification, the McDonald case, has nothing to do with the statues he claims he won't be enforcing. His press release, which is available here:
http://bloximages.chicago2.vip.town...-001cc4c03286-revisions/4c2e51ce8e2b1.pdf.pdf

Also include a number of legally incorrect statements.

The McDonald case does not render any law unconstitutional, not even the one in Chicago, although that is the inevitable result.

The facts that would cause an arrest for any of the statutes listed in his press release have nothing to do with any of the facts before the Court in the McDonald case.

For the record, this is positive analysis, not normative analysis. Obviously I do not favor any of these laws, nor would I declare them constitutional if I were on the Court. That said, my understanding of the law is that none of the statutes mentioned in his press release are bound by any precedential opinion of the Supreme Court, including the McDonald case.

Oh and I'm not a lawyer.

 

[JBusch8899]

.

 

[downzero]

What connection between the holdings in McDonald have anything to do with the statutes in that press release?

I also find it absolutely ridiculous that the same people who would cry judicial activism if McDonald went the wrong way are advocating for a member of the executive branch to engage in legislating.

What he is doing is a blatant violation of the separation of powers.

 

[JBusch8899]

.

 

[downzero]

I'm not seeing what you're attempting to convey.

The Supremacy Clause of COTUS is the deciding factor in this matter. If SCOTUS's opinion conflicts with the specific state law, then the law is invalid on it's face.

Do you believe that Brown v. Board of Education was only valid unto the school district of Little Rock, AR?

As such, the DA is following the law.

Your reading of the law is incorrect.

Only the portions of a SCOTUS opinion that answer the question asked by the Court are binding precedent. This is called the "holdings" in the case.

The question presented in McDonald v. Chicago was:

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Therefore, no language other than that which answers this specific question, which is what was necessary to resolve the issue in the case, is binding precedent on any court in this country.

What that's not saying is that McDonald doesn't apply outside Chicago or the Seventh Circuit. That would be incorrect.

Nothing involving the carrying of firearms was at issue in the McDonald case, and appellate courts do not rule on things beyond the facts before them, to include the Supreme Court of the United States.

Any other editorializing in the case is dicta, which while it may give some insight as to what the Court was thinking when it issued its opinion, it does not have any precedential value.

Therefore, this DA justifying his actions on McDonald is incorrect.

 

[JBusch8899]

.

 

[downzero]

As such, the DA may very well be correct in his assessment of McDonald and it's application to Wisconsin law.

1. The possessive form of its is still "its."

2. If the DA is basing this decision on anything in McDonald, he is dead wrong. Nothing in the case suggests that concealed carry without a license is a constitutional entitlement.

Allowing an executive office to override the democratically-elected legislature's statutes is a blatant violation separation of powers, and I'm willing to bet that the Attorney General will treat it as such if there is a case that this DA refuses to prosecute.

Considering his county is small, rural, and sparsely populated, it is highly unlikely such a case will ever be investigated for charges. The police in the county have already stated that they will arrest anyone who violates the law, regardless of the DA's activism.

 

[Bill of Rights]

The "democratically-elected legislature", IIRC a year or two ago, enrolled an act that would have ended Wisconsin's ban on concealed carry (and I think created a CCW permit/license/whatever as well.) The governor ignored the will of the people and of the legislature and vetoed it. While the veto is within his power, I'm reminded of the advice: Just because you can do something does not mean that you should.

I have yet to sit down and read all of McDonald, but I consider it a possibility that the DA was extrapolating based on the holdings as well as the dicta, in addition to his own reading of the Constitution. In other words, he was thinking. This, IMHO, should be strongly encouraged.

I also consider the actions of the PD similar to those of Daley, prior to the ban being indirectly ruled unConstitutional; He didn't care what anyone said, no da*ned peon in his kingdom was going to have a gun no matter what anyone else said. Given a clear ruling, he directly defied it (Heller) by any loophole he could find, in this case it being the claim that he didn't care whether the Court found it to be an individual right, it didn't apply to him because his kingdom was not a federal district but a city located in a state, as if individual rights and liberties had their basis not in humanity but in geography.

Blessings,
Bill

 

[JBusch8899]

.