On 10/7/2021 7:46 PM, Barry Gold wrote:
On 10/7/2021 4:13 PM, S K wrote:
Kyle Rittenhouse is charged with illegally possessing a firearm while
under age 18.
Wisconsin state law 948.60(2)(a) states: "Any person under 18 years of
age who possesses or goes armed with a dangerous weapon is guilty of a
Class A misdemeanor." However, the exception is: "when the dangerous
weapon is being used in target practice under the supervision of an
adult or in a course of instruction in the traditional and proper use
of the dangerous weapon under the supervision of an adult."[8]
Wisconsin statute 948.60(3)(c) states: "This section applies only to a
person under 18 years of age who possesses or is armed with a rifle or
a shotgun if the person is in violation of s. 941.28 or is not in
compliance with ss. 29.304 and 29.593."[9]
Rittenhouses's attorneys say that the "exceptions' allow a 17 year old
to open carry an AR15 in an urban setting without having to claim
he/she was hunting.
The judge saw the absurdity of this badly written set of laws (he said
the "exceptions destroy the baseline law") but has not been able to
strike the defense claim down for now.
Are judges bound by the strict wording the law that allows absurd
ambiguity or can they simply declare that the legislature could not
have intended such an absurd interpretation and throw it out?
Most of the time, a court will try to preserve a bill as written. The assumption is that the legislature knows what it is doing, and if it
doesn't like the results it can amend the legislation.
The only exception is if the legislation violates the US or state Constitution. Then the court will either strike it down in its entirety,
or -- if the bill is "severable" -- strike out the unconstitutional
parts and leave the rest intact.
[COngress or a legislature will often explicitly state that a law is severable if some part of it seems "iffy"]
A good example of that is the Texas abortion law (but if ya ask me,
including a severability clause is just an open admission that you
*already KNOW* that the law, in some parts at least, is very likely to
be found unconstitutional/void.)
Sec. 171.212. SEVERABILITY.
(a) Mindful of Leavitt v. Jane L. the severability of a state statute regulating abortion the United States Supreme Court held that an
explicit statement of legislative intent is controlling, it is the
intent of the legislature that every provision, section, subsection,
sentence, clause, phrase, or word in this chapter, and every application
of the provisions in this chapter, are severable from each other.
(b) If any application of any provision in this chapter to any person,
group of persons, or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all
other persons and circumstances shall be severed and may not be
affected. All constitutionally valid applications of this chapter shall
be severed from any applications that a court finds to be invalid,
leaving the valid applications in force, because it is the legislature's
intent and priority that the valid applications be allowed to stand
alone. Even if a reviewing court finds a provision of this chapter to
impose an undue burden in a large or substantial fraction of relevant
cases, the applications that do not present an undue burden shall be
severed from the remaining applications and shall remain in force, and
shall be treated as if the legislature had enacted a statute limited to
the persons, group of persons, or circumstances for which the statute's application does not present an undue burden.
(b-1) If any court declares or finds a provision of this chapter
facially unconstitutional, when discrete applications of that provision
can be enforced against a person, group of persons, or circumstances
without violating the United States Constitution and Texas Constitution,
those applications shall be severed from all remaining applications of
the provision, and the provision shall be interpreted as if the
legislature had enacted a provision limited to the persons, group of
persons, or circumstances for which the provision's application will not violate the United States Constitution and Texas Constitution.
(c) The legislature further declares that it would have enacted this
chapter, and each provision, section, subsection, sentence, clause,
phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection,
sentence, clause, phrase, or word, or applications of this chapter, were
to be declared unconstitutional or to represent an undue burden.
(d) If any provision of this chapter is found by any court to be unconstitutionally vague, then the applications of that provision that
do not present constitutional vagueness problems shall be severed and
remain in force.
(e) No court may decline to enforce the severability requirements of Subsections (a), (b), (b-1), (c), and (d) on the ground that severance
would rewrite the statute or involve the court in legislative or
lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a
statute, as the statute continues to contain the same words as before
the court's decision. A judicial injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting enforcement that
may subsequently be vacated by a later court if that court has a
different understanding of the requirements of the Texas Constitution or
United States Constitution;
(2) is not a formal amendment of the language in a statute; and
(3) no more rewrites a statute than a decision by the executive
not to enforce a duly enacted statute in a limited and defined set of circumstances.
--- SoupGate-Win32 v1.05
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