Date: Wed, 16 May 2001 12:28:57 -0700
From: rsrchsoc@ionet.net ("John Wilde")
Subject: [lpaz-discuss] Is the Defense of Necessity In Jeopardy?
To: becraft@hiwaay.net ("Larry Becraft"), dmeador@poncacity.net ("Dan Meador"), ice-bucket-owner@egroups.com ("ICE"), LibertarianExchange@yahoogroups.com ("LibExc"), lpaz-discuss@yahoogroups.com ("lpaz-discuss"), legality-of-income-tax@egroups.com ("LOIT"), AZRKBA@asu.edu ("Right to Keep and Bear Arms in Arizona"), goamail@gunowners.org ("Gun Owner of America")
Reply-To: lpaz-discuss@yahoogroups.com
--------------E2A6015A058F9A8686E72FDA
Content-Type: text/plain; charset=iso-8859-1
Content-Transfer-Encoding: 8bit
Hello Everyone,
After reading the decision by the Supreme Court on Tuesday in
UNITED STATES v. OAKLAND CANNABIS BUYERS COOPERATIVE et al.
(click on it to go read it) I have concluded that the
ramifications of this decision are far more reaching than just
the "drug" laws that were at issue in the case.
It has generally put in danger the "Defense of Necessity" and
has for the first time that I have been able to discover stated a
"judicial exception" to the use of the "Defense of Necessity."
This Defense has traditionally been available as a challenge to a
claim that the law has been violated. Prior to this decision the
only time that the "Defense of Necessity" was not available is if
the legislature itself enacted in the statute itself an exception
to the use of the Defense of Necessity.
If this judicial exception to the Defense of Necessity is
going to become the norm, then areas involving poltical protest,
use of firearms and other legal challenges could conceivably
become the next target for the application of this judicial
exception.
The "Defense of Necessity" can be described in these terms.
"Necessity shall be a good excuse in our law, and in every
other law" Necessitas non habet legem
Other such legal maxims reveal the basis for the "Defense of
Necessity"
Necessitas inducit privilegium quoad jury privata Necessity
gives a privilege with reference to private rights. The
necessity involved in this maxim is of three kinds viz: (1)
Necessity of self-preservation (this is the one that should have
been held applicable to the use of marijuana for medical
perposes); (2) of obedience; and (3) necessity resulting from the
action of God, or of a stranger.
Necessitas facit licitum quod alias non est licitum Necessity
makes that lawful which otherwise is not lawful.
Necessitas sub lege non continetur quia quod alias non est
licitum necessitas facit licitum Necessity is not restrained by
law; since what otherwise is not lawful necessity makes lawful.
Hold to your necessities (pun intended) folks, this could be
a foreboding of a bumpy ride in the near future. We can prevail
if we are vigilant, but this is one of those inocuous little
things that we have to watch out for while looking at the big
picture.
What the Courts will do to create additional judicial
exceptions or what areas of the law that it will be attempted to
be applied, I can't even begin to phathom. But the one thing I
have learned about the Courts is that they have this rediculous
capacity to be creative. Pay attention.
g'day
John Wilde