Episode 71: Whoops! Apology & Quickie From Jessa


Jessa: Hey guys. It’s Jessa. So I think probably, those of you that listen are aware that number one: Nick and I are luddites. And number two: out of the two of us, I am the marginally more tech savvy individual, and so it is my job to upload our episodes once we’ve recorded them. I made an error last night and accidentally mashed up part of part 2 into part 1. So what I did was went back through, took down both episodes on the Scott Peterson case, correctly edited them and now have uploaded them. So ‘Scott Peterson part 1: corrected-audio’ is the right version, and ‘Scott Peterson part 2: how biased are we?’ is the correct version of the second part. I sincerely apologize for that misstep and I thank all of my listeners for reaching out and letting Nick and I know that we had screwed that up. So delete the bad ones. Download the good ones. And as a little bit of an apology quickie, there’s something I’ve been thinking about and so I thought I would briefly introduce this as an idea, and then Nick and I will probably expand on a larger policy episode.


We’ve gotten a lot of questions about what to do with the mass shootings? And we didn’t answer those questions in last month’s Q&A because our knee jerk reaction was, “Well, the gun control question is really a separate question than that of true crime and criminal law.” Of course, that ignores the reality that guns are regularly used to commit crimes. And so I think that we punted a little bit when we chose not to answer that question. And so I’m gonna take a stab at it now.


But here’s what I guess I’d like to start a dialogue on, and one of the things I keep coming back to is I am a firm believer, as all of you know, in the constitution and in the enumerated rights that are granted and given, and the founding fathers ultimately chose to include the affirmative right to keep and bear arms. So my initial standpoint is, ‘There better be pretty good reasons to do anything to affect that.’ However, when I start to think about other rights we have, like the freedom of speech or the ability to assemble or protections under the Fourth Amendment against the warrantless search of our person, place, and papers. Or our Sixth Amendment affirmative right to counsel. I realize that there are times, well, it’s called ‘time, place, and manner restrictions’ in First Amendment jurisprudence, but there are times, places, and manners in which we restrict all of those constitutionally protected rights.


For example, you have to get a permit if you’re going to have a gathering over a certain number of people to engage in peaceful protest. The Fourth Amendment warrantless entry prohibition has several exceptions, including but not limited to: in plain sight or plain view doctrine, exigent circumstances, hot pursuit, and good old fashioned concern about destruction of evidence being imminent. Your right to counsel can actually be forfeited if a court finds that you, through the course of your dilatory and otherwise belligerent behaviour, have engaged in a course of conduct so egregious such that it is no longer possible for the court to continue to provide counsel to you. And that’ll happen sometimes with people who fire lawyers over and over again at the last minute, or are otherwise disruptive in a courtroom.


So when I look at it and I think about it, I cannot name another constitutionally protected right in which we still have absolute unfettered protection. There are reasonable restraints placed on almost every right granted to us. Why is it that we can require people to apply a certain amount of time in advance to hold a peaceful non-armed protest, but at the same time, similar reasonable restrictions placed on semi-automatic weapons are the subject of such intense debate? Why are there not protesters gathering about the restrictions we place on the First Amendment? Why has there been no outrage about the slow erosion of the protection under our Fourth Amendment rights where, nowadays, the exceptions seem to overtake the rule. The rule, of course, being warrantless entry. And yet, when we talk about Second Amendment jurisprudence, people are uncomfortable with that restriction.


One argument that I have heard advanced is that the First Amendment is not an affirmative right, insofar as it begins “Congress shall make no law of restricting…” whereas the Second Amendment is an affirmative right, which is to keep and bear arms. There are certain courts, and the districts are split on this, that entertain that distinction. I am not in favor of that distinction. But even if I were, because I think all of your rights, regardless of phrase, are, at the end of the day, affirmative rights because while congress can’t restrict speech, the flip side of that coin is that you have the right to freedom of speech. So I think that’s a semantic’s game. However, even if we want to go through that sort of line of cases and draw a distinction between the “shall make no law” rights and the affirmative rights, you have the affirmative right to counsel. And as I said, counsel can be forfeited in various select situations. I’ve certainly seen it in my practice.


So one of the things that I think is so interesting about this conversation is that for whatever reason, we’re not allowed to suggest nuance, at least when it comes to public arenas. I mean, obviously people are allowed to say whatever they want to say, but the pushback that we get from certain groups about reasonable restrictions on gun control looks really different than the pushback, or rather, lack of pushback that we get on reasonable time, place, and manner restrictions on other fundamental rights.


So that’s my food for thought and my apology quickie. Thanks again for sticking with us with our audio trouble. I’m Jessa Nicholson Goetz, and this was a little bonus apology episode of Getting Off.