constitutional arguments
One of the classic pieces of scholarship on the second amendment is The Embarrassing Second Amendment, by Sanford Levinson, originally published in the Yale Law Review. It does a great job of weighing carefully whether the amendment allows either an individual's rights to gun ownership or a state's right to have a militia.

But, what really stands about the article is the methodology that Sanford Levinson uses to explore possible arguments under a constitutional provision:

My colleague Philip Bobbitt has, in his book Constitutional Fate, [30] spelled out six approaches -- or "modalities," as he terms them -- of constitutional argument. These approaches, he argues, comprise what might be termed our legal grammar. They are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on. The six are as follows:

1) textual argument -- appeals to the unadorned language of the text;

2) historical argument -- appeals to the historical background of the vision being considered, whether the history considered be general, such as background but clearly crucial events (such as the American Revolution). or specific appeals to the so-called intentions of framers;

3) structural argument -- analyses inferred from the particular structures established by the Constitution, including the tripartite division of the national government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order;

4) doctrinal argument -- emphasis on the implications of prior cases decided by the Supreme Court;

5) prudential argument -- emphasis on the consequences of adopting a proferred decision in any given case;

6) ethical argument -- reliance on the overall "ethos" of limited government as centrally constituting American political culture.

I want to frame my consideration of the Second Amendment within the first five of Bobbitt's categories; they are all richly present in consideration of the Amendment might mean. The sixth, which emphasizes the ethos of limited government, does not play a significant role in the debate of the Second Amendment.

The presentation that Sanford makes while showing how these arguments can be used provides a very helpful example for anyone wishing to debate an issue on constitutional grounds.

proportionality vs. voter rights---running debate
[The subject of the debate: two cases, dealing with the three strikes laws in California. The Supreme Court has decided to rule upon them. How will they rule? Why? How should they rule?]

The first thing the U.S. Supreme Court will have to tackle, when deciding the California cases (Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978) is whether they will continue to follow Solem v. Helm (463 U.S. 277).

Under Solem, the Court stated that although the state legislatures [and presumably state voters] are afforded substantial deference, there is no state mandated sentence that is per se, constitutional. The Solem court ruled that the sentence for the triggering crime must be proportionate to that crime.

I anticipate that the first part of Bill's argument, and probably the meat of it, is that the Court should now follow Solem, and find that the California sentences are disproportionate and thus unconstitutional. I will go out on a limb and predict that this Court will decline to follow (overturn) Solem.

I think instead that the Court will uphold the California sentences and reiterate the language of Harmelin v. Michigan..." We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no pro-portionality guarantee."

If I am wrong, I doubt very seriously that the Court will declare California's statute unconstitutional, they would more likely just reverse those particular sentences.

If I am doubly wrong I will be picking crow feathers from my mustache for quite a while.

weight loss tax deductible?
The Internal Revenue Service will now allow participation in medically approved weight loss programs to qualify as medical expenses, eligible for tax deductions.

The deduction is retroactive to 1998, and amended tax returns from previous years can be filed to take advantage of this decision. There are limitations to what can be deducted. Medical expenses seem to be what the IRS is including as the costs covered under this interpretation of obesity as a disease.

Taxpayers have been able to deduct the costs of weight loss programs as a medical expense since 2000 only if they were recommended by a doctor to treat a specific disease. Obesity itself was not recognized by the IRS as an ailment that qualified for the weight loss expense deduction.

Note that special dietary foods aren't deductible.

And if you haven't filed your taxes yet this year, you might want to take a peek at the IRS document on tax scams that they call: The ‘Dirty Dozen', (pdf) which includes some good advice on how not to get taken.

The days to file are getting shorter. I have some forms to download....

international spam fighters
On the heels of an article in yesterday's LA Times entitled State Spam Laws Rarely Enforced comes news of a new initiative from the FTC, and a multistate task force.

The Times article pointed at Delaware's spam law as one of the toughest in the states, and noted that it had never been used in a criminal prosecution.

The federal government seems to be looking to address the difficulties that the states have been having locating spammers. Working with a number of states, and four Canadian agencies, this international netforce has started a serious effort to stem the rising tide of unsolicited commercial emails.

Partners in the International Netforce include the Alaska Attorney General, the Alaska State Troopers, the Alberta Government Services, the British Columbia Securities Commission, the British Columbia Solicitor General, Canada's Competition Bureau, the Federal Trade Commission, the Idaho Attorney General, the Montana Department of Administration, the Oregon Department of Justice, the Washington Attorney General, the Washington State Department of Financial Institutions, and the Wyoming Attorney General.

It's good to see an international group working together on a problem that will probably only grow in magnitude.

Wired gives a good explaination of why the group has choosen now to take action:

Since the beginning of 1998, the FTC said people have forwarded 10 million spam messages to uce@ftc.gov, the address for the agency's junk e-mail database.

But the all-time biggest month, Harwood said, was March. Following a publicity campaign to draw attention to the junk e-mail problem, the agency received 1 million forwarded spams in that month alone.

While the ultimate solution to spam may require legislation, or some way of changing the way that the internet actually works, without an enforcement effort of some type, any legislation is doomed to fail.

debate
If you've one of the regular readers of this blog, you may have noticed that there is more than one person contributing entries. I made an entry last night about a news article appearing in the LA Times which discussed habitual offender statutes (three strikes laws).

I didn't realize until this morning that Larry had made a response to my post, and had sent me an email with the subject line "Your Turn." I guess he took offense to my remark about opening season, and baseball. I didn't expand upon the baseball metaphor I pointed out. If I had, I would have said that criminal law is not a game, and using a baseball metaphor to sell a three strikes law to the public is a sham.

I sent an email to Larry telling him that his post was too long. Nobody wanted to read all of those statutes. If you haven't read the meat of his initial argument, skip past the statutes. It's there, or at least the beginning of an argument is there.

But, what I want to know is how is Delaware's law different from the California law, which seems to result in some pretty stiff sentences for some fairly harmless crimes? Shouldn't there be some level of proportionality between an offense and a sentence? Isn't there a means of receiving a similar result from a less expensive means of supervision? Wouldn't a lengthy term of probation for the third offense achieve the same result at a fraction of the cost? Can't the failure to rehabilitate be partially blamed upon the state?

So Larry, rather than present my arguments, how about if you anticipate them? Tell me what I might argue, and why it might be wrong. That's the gauntlet I'm laying down.

cumulative bonus territory
The "three strikes" statutes are commonly referred to by that phrase because of the frequency of the use of three offenses, but they also occur at various times as "two, three, four, or even ten strikes" in Delaware statutes. The enhanced penalties are not properly to be construed as the penalty for the second, third, fourth or tenth offense, but rather as a bonus sentence for the cumulative criminal efforts of the defendants. Or are they?

We see the two strike rule when juveniles commit their second felony level delinquent act within a year of their last one. This carries a minimum mandatory 6 month period of incarceration.

10 Del. C. § 1009. Adjudication; disposition
(1) Any child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute a felony were the child charged as an adult under the laws of this State, and who shall thereafter within 12 months commit 1 or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were the child charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 6-month period of institutional confinement;...

The three and four strike rules can be seen in the adult criminal arena, and can result in life sentences or at least the maximum sentence available for the most recent crime.

11 Del. C. § 4214. Habitual criminal; life sentence.
(a) Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th. or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in 11 Del. C. § 4201 (c) of this title. Notwithstanding any provision of this title to the contrary, any sentence so imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole, except that any such sentence shall be subject to the provisions of 11 Del. C. § 4205 (h), 4217, 4381 and 4382 of this title.

(b) Any person who has been 2 times convicted of a felony or an attempt to commit a felony hereinafter specifically named, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an habitual criminal, and the court in which such third or subsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony conviction requires or allows and results in the imposition of capital punishment. Such sentence shall not be subject to the probation or parole provisions of Chapter 43 of this title.

Such felonies shall be:

... [long list of serious felonies ommitted]

Notwithstanding any provision of this title to the contrary, any sentence imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation, parole, earned good time or any other reduction. ....

Take note that the drafters of the adult criminal laws took great care to make sure that the habitual offender statute would not interfere with one's opportunity to be executed for a crime, if appropriate. It is also interesting that all of these crimes need not have been committed within the State of Delaware. The defendant could have committed crimes number one and two in Nevada, for example, and then the triggering final crime in Delaware.

And driving related offenses can be seen to trigger their own civil, not criminal, three and ten strike events. Although most of the habitual bad driver statutes result in a lengthy revocation of a driver's license, and not life imprisonment.

On one hand, it can be seen that the bonus punishment under these statutes are relating back to the cumulative pattern of behavior.

But the dilemma becomes apparent in the logic when (or if) one considers that after a defendant has completed her sentence for crime number one, she has fully discharged her debt to society for that crime. When she completely serves out her time out for number two, she similarly has fully paid her dues.

But when she commits her third offense, even if minor in comparison, can the government retroactively go back and say that we are now adding a penalty for crimes number one and two? If not, then isn't a life sentence for stealing a postage stamp so outrageously disproportionate as to be unconstitutional? Does the fact that the defendant has had notice of the existence of these "three strike" rules all through her criminal career ease our concerns in that regard sufficiently?

For me it does. But that does not mean that I still don't have difficulty in the legal analysis of the problem. It just means that I don't feel sorry for career criminals. I live here too.