Patterico's Pontifications

6/3/2009

No Right to Self Defense?

Filed under: General — Patterico @ 7:33 am

At The Jury Talks Back, Kevin Murphy brings to the attention of readers a Seventh Circuit case that suggests that states may constitutionally eliminate the right of self defense. If the case’s logic were accepted, we would have a Constitution that supposedly protects a woman’s right to abort her fetus for any reason or no reason — but that doesn’t protect your right to defend yourself if attacked.

That doesn’t sound right to me.

135 Responses to “No Right to Self Defense?”

  1. The 7th? Who they? Oh, yeah, the obamabots!

    GM Roper (85dcd7)

  2. Let’s see….

    If a pregnancy is terminated because the fetus is a threat to the life of the mother, wouldn’t that be self-defense? And if you don’t have a right to self-defense, how could you have the right to abort a fetus that was a threat to your life?

    Steverino (69d941)

  3. It seems that the 9th is not the only Circuit populated by idiots!

    AD - RtR/OS! (4a0d27)

  4. Which penumbra of the Constitution enshrines the right to self-defense?

    Breaking News! (567029)

  5. It all comes down to encroaching statism: government knows what is best for you. How dare the government tell you that you can defend yourself. Government will defend you!

    Eric Blair (5a226d)

  6. That whole right to life, liberty, and the pursuit of happiness thing. You know, those silly little notions our nation was founded on.

    JD (cb1063)

  7. Also good to see that AD – RtR/OS thinks that Easterbrook and Posner, two conservative judges, are now idiots, and apparently Obamabots according to GM Roper. And, of course, AD – RtR/OS doesn’t even realize that this decision actually runs contrary to one from the reviled and traitorous 9th Circuit.

    Breaking News! (567029)

  8. Sounds great, JD. But you know how the Constitution evolves. Those are increasingly old fashioned notions, supplanted by our post-ironic, cool view of modern politics.

    In other words, oligoarchy.

    Eric Blair (5a226d)

  9. Which penumbra of the Constitution enshrines the right to self-defense?

    I think it’s the one that says Life, liberty, and pursuit of happiness. But that’s probably just me.

    Thomas (1c2383)

  10. Thomas, I am guessing that we will find that concept of yours open to SCOTUS interpretation.

    Eric Blair (5a226d)

  11. Good to see JD doesn’t know the difference between the Constitution and the Declaration of Indepedence.

    Breaking News! (567029)

  12. And Thomas too!

    Breaking News! (567029)

  13. Two things:

    Illinois does not agree with the Seventh Circuit. By statute, if you possess a gun illegally in your home, on your own land, or in your fixed place of business, and you use it in self-defense or in the defense of an innocent third party, you cannot be prosecuted for its illegal possession.

    The most baddest part of this decision is that it is being used by supporters of Sotomayor as proof that “conservative judges” agree with her on the Second Amendment.

    Ok, three things: There is no bigger fan of Reagan than me but I would call his judges “statist” rather than “conservative”

    Ok, four things: Shipwreckedcrew’s analysis in the comments in The Jury is pretty darn good.

    nk (157acd)

  14. How about the 5th Amendment?

    …nor be deprived of life, liberty, or property, without due process of law…

    (Presumably, you have the right to prevent yourself from being deprived of life, liberty, or property.) Self-defense is just a means of insisting on due process.

    Steverino (69d941)

  15. [...] and abortion. Abortion and self-defense. Posted by Dan Collins @ 4:38 am | Trackback SHARETHIS.addEntry({ title: “Hate-F*ckGate [Dan [...]

    Hate-F*ckGate [Dan Collins] (7a2640)

  16. BTW, Patterico, some time ago we had a disagreement whether the surviving gangbanger in a shootout could claim self-defense.

    nk (157acd)

  17. You mean the 14th, not the 5th. The question in this case is whether the 14th incorporates the 2nd. The 7th Circuit said no.. You’ll note the link in the post is broken, so presumably all of the esteemed legal scholars in this thread are weighing in without benefit of reading the (short) decision, which may be why we’re getting such ill-informed commentary.

    Another amusing irony is that the NRA tried to rely on that dread bugbear, foreign law.

    Self-defense is just a means of insisting on due process.

    What process? Would someone convicted under the laws at issue here be denied their right to a jury trial or their confrontation rights? I don’t see anything about that in the decision.

    Breaking News! (567029)

  18. Posner and Easterbrook, in their tortured attempt to not be activist judges (as per their libertarian tendencies) have genuflected at the alter of stari decisis just as some of the most conservative jurists on the 9th have previously. To me, that just shows that their love of process overwhelms their sense of Liberty.
    But, this decision is in conflict with the 9th, and should be taken up by the Supremes for resolution.

    And the new game is:
    Just who is “breaking news”?
    What previous/current identities does it possess?

    AD - RtR/OS! (4a0d27)

  19. Broken Record sounds an awful like DSCSA (or whatever the hell his name was).

    Dr. K (eca563)

  20. To me, that just shows that their love of process overwhelms their sense of Liberty.

    In other words, they followed precedent rather than your personal conception of liberty.

    Breaking News! (567029)

  21. These clowns are so tiresome. This is one that would claim that the Constitution guarantees a Right to an abortion, but questions the legitimacy of self-defense.

    Are you really arguing that life, liberty, and the pursuit of happiness are not some of the foundational principles of our country?

    JD (cb1063)

  22. Just step around whatever spammer Breakingniews is, please, everyone. That’s what it wants to do. Derail the thread. Please don’t let it do it.

    nk (157acd)

  23. Since it seems infatuated with the idea of self-defense not being spelled out, where did Teh One dervie the authority to take over GM, and to force parties to abrogate their right in bankruptcy in order to reward the UAW?

    JD (cb1063)

  24. 5th…”No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]”

    14th…”Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…”

    The 14th just extends to the the States the protections imposed against the Federal Government by the 5th, compelling those states controlled by the Democrat Party with a history of individual rights violations to observe the basic, God-given Rights secured by the Constitution that accrue to all citizens.
    That it has taken this long for the Judiciary to acknowledge the incorporation of all parts of the Bill of Rights against the States says more about them than it does the law.

    AD - RtR/OS! (4a0d27)

  25. AD-Rtr/OS: it’s worth noting that the Ninth Circuit reached the opposite conclusion in this case and has held that the second amendment applies to the states.

    aphrael (9e8ccd)

  26. AD, you are a Warren Court Liberal. Do you have any idea how much “conservatives” have fought against incorporation over the past 40 years?

    nk (157acd)

  27. Aphrael – The Cubs once won the World Series too. Strange strange things happen from time to time.

    JD (cb1063)

  28. JD: As I said in the Jury thread, I’d go further than incorporating the second amendment; I think that the right to self-defense is so critical a right that it is independently protected by the fourteenth amendment.

    aphrael (9e8ccd)

  29. NK: conservatives lost the incorporation debate, and there is zero chance that incorporation is going to be rolled back.

    aphrael (9e8ccd)

  30. Since the Declaration of Independence is the founding document of the United States, its’ precepts take precedence over anything written in the Constitution, which was conceived “to form a more perfect Union” than had existed up to that time (the Articles of Confederation); and the justifications for the Declaration are found in the history of English Common Law leading all the way back to the Magna Carta, and are the only “foreign law” that we should look to for guidance.

    AD - RtR/OS! (4a0d27)

  31. Now that the 7th and 9th circuits have reached different conclusions, I guess we’ll get to see what a wise Latina will decide on the point.

    rochf (ae9c58)

  32. Aphrael – See? You and I can agree at times ;-). If one cannot protect themselves, their family, and their property, then we will competely abrogate our protection to the police and justice system.

    JD (cb1063)

  33. Rochf: aha! the second circuit has already ruled on this. It agrees with the seventh circuit.

    This creates the interesting dynamic that the outcome of the case may depend on which court the Supreme Court hears an appeal from; Judge Sotomayor would likely have to recuse herself from an appeal from the second circuit case.

    aphrael (9e8ccd)

  34. No, AD, the declaration of independance has no precedence. It was not a founding document. It was a propaganda piece, a resolution, nothing more.

    SPQR (72771e)

  35. This is one that would claim that the Constitution guarantees a Right to an abortion,

    Please to be providing evidence for this claim?

    Are you really arguing that life, liberty, and the pursuit of happiness are not some of the foundational principles of our country?

    Nope. I’m arguing that that phrase appears nowhere in the Constitution. You know, adherence to the text and all that kind of quaint stuff.

    where did Teh One dervie the authority to take over GM, and to force parties to abrogate their right in bankruptcy in order to reward the UAW?

    This has something to do with incorporation of the 2nd Amendment? Or are you just changing the subject because you’ve realized you don’t know what you’re talking about?

    But I’ll bite. You do know that GM is, you know in bankruptcy and thus Judge Gerber will decide whether creditor rights are being abrogated, just as Judge Gonzalez did w/r/t Chrysler on Sunday. You do understand what’s going on, don’t you?

    That it has taken this long for the Judiciary to acknowledge the incorporation of all parts of the Bill of Rights against the States says more about them than it does the law.

    Ever heard of the Seventh Amendment? Not incorporated.

    Breaking News! (567029)

  36. Legal crapola like this should not surprise anyone. For years, we have seen burglars file civil lawsuits against innocent homeowners when the burglar got injured breaking into the home. To us non-lawyers, this only seems like a natural extension.

    JD (cb1063)

  37. Comment by aphrael — 6/3/2009 @ 8:30 am

    I believe that I have previously noted the decision in Nordyke (if not by name).

    nk…

    Though I carry no water for Earl Warren (who, after all, was the progenitor of Japanese Internment), if any part of the Bill of Rights is to be incorporated against the States, then all parts should be. Anything less results in an incomprehensive philosphy of governance.
    I also think that the prohibition against Double Jeopardy needs to be tightened – allowing the Feds to try someone for the same crime that resulted in an acquital in a State court offends the sensibilities. If it was so damn important to take to trial in the first place, why didn’t the Feds muscle their way into line and do it first?

    If I can be described as anything, it is as a 2nd Amendment absolutist. I believe that NFA-34, GCA-68, and follow-on statutes are incompatable with the 2nd.

    AD - RtR/OS! (4a0d27)

  38. The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

    Obviously, the “doctrine of incorporation” be damned. If they can do this to the 2nd amendment, what stops this from applying equally to the 1st amendment, which specifically mentions “Congress may not.”

    Neo (46a1a2)

  39. “Constitution that supposedly protects a woman’s right to abort her fetus for any reason or no reason ”

    Patrick, that’s a rhetorical distortion, and you know it.

    SarahW (fdd722)

  40. It is also worth noting that the 9th Amendment, tirelessly avoided by all, suggests that there were rights that existed before the Constitution and that still exist even though they were not expressly mentioned.

    While some have suggested that these preexisting rights include abortion, various sexual acts, drug use and other modern issues unlikely to have been widely perceived as “Rights” in 1793, it boggles the mind to think that the right to self-defense was not a given to the Founders.

    Kevin Murphy (0b2493)

  41. Just another mendoucheous troll, predictable from its first comment. Pats self on back.

    JD (cb1063)

  42. Since the Declaration of Independence is the founding document of the United States, its’ precepts take precedence over anything written in the Constitution,

    Oh man. This is great stuff. Those stupid founders, wasting all that time with a constitutional convention and ratification stuff when all it takes is a letter previously signed by 56 men to supercede it? What maroons they must have been.

    Breaking News! (567029)

  43. Comment by SPQR — 6/3/2009 @ 8:39 am

    WADR…The DofI is the founding document of the United States.
    The Articles of Confederation and the Constitution only define the orginization of the central government,
    but the DofI defines the State (nation) – there is a difference!

    AD - RtR/OS! (4a0d27)

  44. If the Right to Life is a given under our form of Government,
    how can there not be a Right to Defend Life?

    Without both, each is individually meaningless.

    AD - RtR/OS! (4a0d27)

  45. The decision that the circuit relies on for not being incorporated predates any of the Bill of Rights being incorporated and only concludes that the priviledges and immunities clause did not incorporate the right against the states.

    To protect this patently dishonest line of logic, subsequent incorporation decisions used a different provision of the 14th Amendment.

    SPQR (72771e)

  46. Just another mendoucheous troll, predictable from its first comment. Pats self on back.

    Yeah. People who expose your ignorance with knowledge of the relevant topic are so mendoucheous.

    Breaking News! (567029)

  47. Sarah, correct, but the right to abortion also does not end with the “right to privacy” as the privacy right has firm limits. For example, child abuse in the home is not covered.

    Even the Privacy portion of Roe ends sometime around month 3 or 4. Inherent in the right to abortion after that point — the right in regard to risks to the life or health of the mother — is the right to self defense.

    Kevin Murphy (0b2493)

  48. JD…good thing you did your Yoga warmups this AM, wouldn’t want you to strain anything.

    AD - RtR/OS! (4a0d27)

  49. Has anyone determined which of our previous trolls this “Breaking News!” is?

    SPQR (72771e)

  50. I never claimed to have superior knowledge, unlike you, our new pompous pedant.

    JD (cb1063)

  51. Comment by SPQR — 6/3/2009 @ 8:52 am

    I believe that in Nordyke, the 9th did not use the P&I clause, but relied on Equal Protection for their incorporation ruling.

    P&I seemed to fall out of favor sometime around 100+ years ago, and the Courts’ have danced around it ever since.

    AD - RtR/OS! (4a0d27)

  52. Has anyone determined which of our previous trolls this “Breaking News!” is?

    Expose the wrongthinker! He hath disturbed the sanctity of the echo chamber!

    Breaking News! (567029)

  53. AD, it fell out of favor because the Supreme Court wanted to pretend that it was not overturning a previous precedent. However, privileges and immunities clause was really the clause that was the most logical underpinning of incorporation ( and so intended really ) and so we got a basically fraudulent argument based on another clause as a face saving measure.

    SPQR (72771e)

  54. Also, Sarah, I think that Patterico’s real issue is that a modern unenumerated right (abortion) is held near-absolute, while a right expressly listed in the Bill of Rights is marginalized to the point of extinction.

    Kevin Murphy (0b2493)

  55. Echo chamber! What is next? Neocons! Republicans are finished, forEVAH, torture lovers, lied into warforbloodandoil, blood on your hands, and the litany of other standard Leftist canards?

    JD (cb1063)

  56. P&I fell out of favor because it interfered too much with petty governance (see the Slaughterhouse cases) and because it conflicted with the post-Reconstruction accommodation with Southern racism. In particular, one would have to let black folk have guns, and the South didn’t want that.

    There are several studies that assert that the “militia” interpretation of the 2nd Amendment was erected just to keep guns from blacks. After all, if there were no blacks in the militia….

    Kevin Murphy (0b2493)

  57. I’ll state it again.

    Broken Record is probably DSCSA (or whatever the hell his name was).

    The writing patterns are too similar to be coincidence.

    Dr. K (eca563)

  58. Comment by Kevin Murphy — 6/3/2009 @ 9:07 am

    Just confirmation that infestation of the Judiciary by idiots is not a (post)modern phenomana.

    AD - RtR/OS! (4a0d27)

  59. Echo chamber! What is next? Neocons! Republicans are finished, forEVAH, torture lovers, lied into warforbloodandoil, blood on your hands, and the litany of other standard Leftist canards?

    Maybe after you provide that evidence that I support Roe v. Wade. You mostly seem to argue with figments of your imagination rather than actual people.

    Breaking News! (567029)

  60. Dr K – I respectfully disagree with your assessment. ASPCA had a truly distinct style, not reflected in this one. This one has more of a sneering, popmpous, pedantic 3rd year law student that simply knows better than the silly wingnut theoconz.

    JD (cb1063)

  61. I never said you support Roe v. Wade. I did say you would say that the Constitution provides for the Right to abortion, since you seem so fond of parsing and being precise. If I was wrong in my guess, I am sure you will point that out, at which point I will be shown to have been mistaken in my assumption.

    JD (cb1063)

  62. “According to judges Easterbrook, Posner and Bauer there is no right to lethal self-defense”

    Sounds reasonable to me. I don’t see a right to lethal self-defense mentioned in the federal or my state’s constitution. As far as I know no statute recognizes such a right.

    “and states may ban all implements of such a defense, such as guns.”

    No, they may not. People have the right to keep and bear arms. Period. It’s right there in the 2nd amendment to the United States Constitution. The states cannot override the supreme law of the land.

    From Article VI

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    You can pass a law saying that under no circumstances may I use lethal force (if you’re an idiot), but you can’t pass a law saying I can’t keep guns, unless you first get rid of the 2nd Amendent, and then pass such a law.

    Dave Surls (0e8e98)

  63. Sorta like TnJ (the sophomoric whiz-kid).

    AD - RtR/OS! (4a0d27)

  64. But Posner and Easterbrook said it so it must be true! You neocon wingnuts aren’t capable of having independent thoughts and simply follow your idols like sheeple !!!!

    JD (cb1063)

  65. The state could eliminate the right to self-defense.

    After that, more police officers will die in the first month than the number of soldiers killed in Operation Iraqi Freedom since 2003.

    Michael Ejercito (365b6d)

  66. Dave, I assume you would claim that the 9th Amendment does not cover this. Do you claim that the Founders believed there was no existing right to lethal self defense?

    Kevin Murphy (0b2493)

  67. The Founders believed in the Right to “…Life, Liberty and the Pursuit of Happiness…”, and that “…all Men…” were entitled to defend their basic rights against all threats to their Freedom, both foreign and domestic.

    AD - RtR/OS! (4a0d27)

  68. “According to judges Easterbrook, Posner and Bauer there is no right to lethal self-defense”

    Btw, just because it sounds reasonable, and no such right is enumerated, it doesn’t follow that the right doesn’t exist. It might exist, it’s just not mentioned anywhere at the current time.

    There’s this little thing called the 9th Amendment to the United States Constitution. It goes like this…

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Just thought I’d mention that, in case three airhead judges thought that their opinion could cancel out amendments to the United States Constitution.

    I’m not sayiing that applies to these three guys, since I haven’t read the decision, but given the past record of our abysmally bad court system, and its idiot judges, I thought I’d toss it out there, just in case.

    Dave Surls (0e8e98)

  69. “Dave, I assume you would claim that the 9th Amendment does not cover this.”

    Aparently not.

    ;)

    Dave Surls (0e8e98)

  70. The problem is that Easterbrook and Posner are anything but airheads. They’re considered among the best, actually, especially Richard Posner. And they are on the Right.

    Kevin Murphy (0b2493)

  71. “Do you claim that the Founders believed there was no existing right to lethal self defense?”

    I would imagine that if you had proposed such an idea in 1776, most of them would have stopped shooting redcoats, burst into gales of laughter, and then resumed shooting.

    Dave Surls (0e8e98)

  72. The very idea that self defense can be criminalized is laughable. People will fight to stay alive, regardless of the ‘law’.

    When the law threatens survival, then no one will adhere to it. That is the only possible result of such inanity.

    Apogee (e2dc9b)

  73. Apogee – There are other results, predictable results. There will be increases in crime. Homeowners and businessowners will be forced to predict crimes, call the police in advance, in order to protect their persons and property from the criminals. People would then be 100% beholden to the State for their protection, and that protection would not come in the form of actual protection, but retribution and punishment within the legal system.

    JD (0b5895)

  74. I am sure you will point that out, at which point I will be shown to have been mistaken in my assumption.

    You are. You should work on making substantive contributions on the topic rather than stupid exclamation-point-laden caricatures of what you think other people think.

    Breaking News! (567029)

  75. Coming from someone with an exclamation point in their name, that was pretty funny. Thanks.

    JD (0b5895)

  76. Well, I read it…

    “Before EASTERBROOK, Chief Judge, and BAUER and POSNER,”

    “Circuit Judges.”

    “EASTERBROOK, Chief Judge.

    “Two municipalities in Illinois ban the possession of most handguns.”

    1.) The laws are flatly unconstitutional, flagrant violations of the 2nd Amendment to the United States Constitution.

    2.) The term “Circuit Judges” is a synonym for “liars” and “imbeciles”. And, I apologize if any imbeciles out there are insulted by the comparison.

    3.) Under no circumstances will any government tell me what kind of weapons I will own.

    4.) There is no such thing as “incorporation” (see “liars” above). It doesn’t exist, so quit babbling about it. I don’t need to hear judges droning on about zombies, fire breathing dragions, ghosts, or incorporation. If I want to hear about that kind of stuff, I’ll hook my television back up, or buy a book of fairy tales.

    5.) Dicta gives me a headache. IMO, judges who employ it should be tried and executed as enemies of the people. Call from the cluephone to judges: We’re not paying your worthless asses so we can listen to you spew hogwash about what Blackstone said or didn’t say, we’re paying you to adjudicate based on the law (and when I say the law, I don’t mean “case law”, i.e. the bad decisions you’ve made in the past, I mean the actual law). When you sit there and spew, instead of doing what we’re paying you to do, you are stealing our money under color of law.

    6.) We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…

    Just a little reminder.

    Dave Surls (0e8e98)

  77. The court is right, there is no right to self-defense in the Constitution. There’s no right to live, either, and it seems logical that if you have a right to live then you have a right to defend that life if it is threatened. I figure some things are so obvious that the founders didn’t think they needed to write them into the Constitution, but they failed to consider how brain-dead and self-destructive the legal system they originated would devolve to.

    Socratease (64f814)

  78. At least we still have trial by jury.
    Hopefully the “conscience of the community” still believes in self-defense.

    looking closely (671e95)

  79. If one cannot protect themselves, their family, and their property, then we will competely abrogate our protection to the police and justice system.

    Comment by JD — 6/3/2009 @ 8:38 am

    And the police have no duty to protect us.

    I’m glad I’m old.

    quasimodo (4af144)

  80. Having read both the 7th Cir. opinion and the 2nd Cir. opinion, I think the 7th Cir. was being exceedingly generous in saying they “agree” with the 2nd Cir’s decision in Maloney v. Cuomo, and that the 2nd Cir. opinion held that the reasoning in the old Supreme Court cases was “obsolete.” I find nothing in the per curiam opinion in Maloney that would suggest that the panel considered the reasoning in those old cases “obsolete”, notwithstanding Heller.

    Instead, the panel opinion calls Pressler v. Illinois, an 1886 Supreme Court case, “settled law,” characterizing it’s holding as “the Second Amendment ‘is a limitation only upon the power of congress and the national government, and not upon that of the state.’”

    Given Heller, a more proper characterization would be to call it “controlling precedent” whose continuing vitality is now open to question.

    I think they 7th Cir. panel agrees with the outcome in Maloney, but I suspect if a certain prominent 2nd. Cir. Justice wasn’t on that panel they might have been a little more pointed in their language.

    Shipwreckedcrew (e73ed2)

  81. As it happens, there IS a Right to self-defense in the California Constitution, at least according to Eugene Volokh:

    “[D]efending life and liberty” and “protecting property,” twenty-one state constitutions expressly tell us, are constitutional rights, generally “inalienable” though in some constitutions merely “inherent” or “natural” and God-given. A sample, from the California Constitution, which California courts have indeed found to secure a constitutional right to self-defense (emphasis added): “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Yet these constitutional rights are also almost entirely undiscussed ….

    Kevin Murphy (805c5b)

  82. wls, so right now you argue that there is a federal right to self defense (Heller) but not a state one? Is that even remotely tenable?

    Kevin Murphy (805c5b)

  83. I wouldn’t say that the 2nd Amendment establishes a constitutional “right” to self-defense. That wasn’t even asserted in Heller.

    The characterization in Heller was that the 2nd Amendment allows one to keep and use a firearm for “any lawful purpose”, such as self-defense in one’s home.

    A “lawful” purpose can be make unlawful by legislative enactment.

    The term “bear arms” in Heller was defined by the majority as “carrying” of a weapon for “offensive or defensive purposes…”

    So, you read too much into Heller when you say it established a “right” to “use” a firearm in self-defense.

    Shipwreckedcrew (e73ed2)

  84. Is there a state or territory in the United States which does not have the affirmative defense of self-defense in its criminal code? I think that’s where the ducks our for our “Living Constitution”.

    nk (157acd)

  85. Article I, Section 23, of the Texas Constitution provides:

    Sec. 23. RIGHT TO KEEP AND BEAR ARMS.

    Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

    DRJ (8b9d41)

  86. DRJ – I so like Texas.

    JD (45f9ae)

  87. DRJ — in the “lawful” defense of himself.

    What if the State were to say that a person facing a threat has to avail himself of a reasonable opportunity to escape if available?

    Say the intruder opens the front door and tells the homeowner to leave the house while they rob it. But the homeowner goes into the garage and retrieves a hidden handgun, and then reenters the house and shoots the intruder.

    Is that “lawful” where the statue can be read to have required him to escape rather than reenter the house?

    Shipwreckedcrew (e73ed2)

  88. Texas’s carry laws were as restrictive as Illinois’s until about fifteen years ago. Dating back to Reconstruction.

    nk (157acd)

  89. “At least we still have trial by jury.”

    No, we don’t.

    We have courts without juries, that can and do overrule juries, whenever the whim takes them.

    Juries have no power in this country. They’re just rubber stamp bodies for whatever government appointed judges will allow.

    And, we should have fixed that one a long, long time ago.

    Dave Surls (bb8611)

  90. Presser v. Illinois, 116 U.S. 252 (1886)
    “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that [requiring a parade permit] do[es] not have this effect.”
    .
    Compare that with what the 2nd and 7th Circuits CLAIM as the LAW of Presser.
    Maloney v. Cuomo (Sotomayor joins this reading)
    “It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006)”
    .
    cert denied! Bach is informative too, although Sotomayor didn’t participate in that panel.
    “Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states.”
    .
    Huh? See Presser for the OPPOSITE proposition. And this is no innocent error, the whole case changes on this misread.
    .
    These judges KNOW that the public doesn’t read precedent.
    .
    Some bonehead named Presser tries to parade without paying for a permit, and the Federal Circuit Courts of Appeal conflate the right to parade with the right to keep and bear arms.
    .
    I swear, the public will fall for any sort of bullshit, as long as comes from behind the bench.
    .
    I said I was going to cite the 7th Circuit (yesterday’s decision), but it’s pretty much a duplicate of Maloney v. Cuomo.

    cboldt (3d73dd)

  91. What if the State were to say that a person facing a threat has to avail himself of a reasonable opportunity to escape if available?

    That depends.

    If people were to go into government buildings and start pointing weapons, would government agents be legally required to avail themsleves of a reasonable opportunity to escape if available? Under this standard, people would be able to force people out of government buildings by brandishing lethal weapons and telling everyone inside to get out.

    Think about it. Criminal suspects can force their way into crime labs and it would be a crime for the personnel inside to use lethal force to resist as long as the exits are not blocked, which means they would be able to destroy all of the evidence inside.

    Michael Ejercito (365b6d)

  92. SCOTUS in Presser v. Illinois: “… the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms …”
    .
    2nd Circuit, in Bach v Pataki: “Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states.”

    cboldt (3d73dd)

  93. You have a right to your life and freedom, but if you don’t have the right to defend those things, then the right is completely meaningless.

    The courts can spew all the hogwash they want, I reserve the right to defend myself, my freedom, my family, and my property, and I intend to use any weapons I possess to that end, should the need arise, whether government entities like it or not.

    Pas laws that say I can’t have guns…I won’t obey them.

    Pass laws that say I have to run away if someone attacks me, I won’t obey them.

    And, that’s just the way it’s going to be.

    Dave Surls (bb8611)

  94. We have courts without juries, that can and do overrule juries, whenever the whim takes them.
    Juries have no power in this country.

    Quite provably false. Clearly you are not very familiar with the legal system.

    Patterico (1b5c9d)

  95. Comment by Shipwreckedcrew — 6/3/2009 @ 4:09 pm

    Many States have Constitutional language, or statute, that requires one to retreat from a threat – that is why the NRA’s current emphasis on legislative reform is the passage of “Castle Laws” that specifically note the right of self-defense without any requirement to retreat.

    AD - RtR/OS! (4a0d27)

  96. “Quite provably false.”

    Where does the jury sit in the SCOTUS?

    Dave Surls (bb8611)

  97. I just read the 14th Amendment. Nowhere did I see anyplace where it so much as addresses the 2nd Amendment, much less incorporate it. The 14th is irrelevant to the 2nd, has nothing to do with it. Here is a link to the amendment in question, scroll down to read.

    Alan Kellogg (93aa26)

  98. Alan, the relevant portion is:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

    It’s not clear what “priviliges and immunities of citizens of the United States” means, and a reasonable argument could be made that the bill of rights is incorporated against the states by that clause; but courts have not said that.

    Instead, the argument seems to be that a state is depriving a person of liberty without due process of law whenever it, without a compelling state interest, passes a law which interferes with some liberty interest that is so fundamental that it is “essential to a scheme of ordered liberty”.

    This mechanism has been used to incorporate most of the bill of rights against the states.

    My contention is that, if it makes sense to do this at all, clearly the right to self-defense is so fundamental as to be essential to a scheme of ordered liberty … and so whether or not the second amendment is incorporated directly, the right to own weapons which can reasonably be used for self-defense is protected from interference by the states.

    aphrael (9e8ccd)

  99. Shipwreckedcrew,

    As nk notes, Texas did (and probably still does, in certain situations) impose a duty to retreat in connection with acts done in defense of self or third parties. I’m sure every jurisdiction retains the right to define limits on self-defense, but my point is that self-defense is apparently recognized as a basic right in the Texas Constitution under Article I., “Bill of Rights.”

    DRJ (180b67)

  100. ‘It’s not clear what “priviliges and immunities of citizens of the United States” means’

    Don’t be absurd.

    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    That’s a privilege that citizens of the United States enjoy. And, we know exactly what it means.

    Dave Surls (bb8611)

  101. Sure, we know what that one privilige of citizens of the United States is.

    Can you list them all?

    I can’t.

    aphrael (9e8ccd)

  102. “The 7th? Who they? Oh, yeah, the obamabots!”

    How delightful that it would be Easterbrook and Posner that would hammer in the final nail on the coffin of the conservative case against the incorporation doctrine.

    imdw (ff7258)

  103. “Can you list them all?”

    Not off the top of my head, but we still know what this means:

    “priviliges and immunities of citizens of the United States”

    Dave Surls (bb8611)

  104. The NRA has appealed to the US Supreme Court.

    “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don’t prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”

    Kevin Murphy (0b2493)

  105. You don’t often see the NRA cite the 9th Circuit as authoritative.

    DRJ (180b67)

  106. No one knows what the P&I clause means primarily because no one has tried to understand what it means for the last 140 years. The SC disappeared it shortly after it was written because the Radical Republicans fell out of favor.

    Kevin Murphy (0b2493)

  107. The P&I clause was written to counteract the attempts by the Post-Reconstruction South to restrict Freed Slaves of the rights to property, arms, and contracts.
    To say that we don’t know what is meant by the P&I clause is disingenuous at best, and an outright outrage at worst.

    AD - RtR/OS! (4a0d27)

  108. We also know what this…

    “compelling state interest”

    …means. It means nothing. It doesn’t appear in the Constitution (at least I don’t remember seeing it anywhere…for sure it’s not in the 2nd Amendment), and it’s just some crap federal judges made up in order to justify government lawbreaking in cases where rights conflict with government powers.

    It’s just like “state’s rights”, “incorporation”, “collective rights”, or “falsely shouting fire in a theater”. All made up hogwash. All made up for the same reason: to give government powers it doesn’t legally have, and to deny people rights they do legally have. None of it exists, except in the addled brains of various judges, and politicians and other lower forms of life.

    But, privileges held by the citizens of the United States, that actually does exist.

    Dave Surls (bb8611)

  109. “It’s just like “state’s rights”, “incorporation”, “collective rights”, or “falsely shouting fire in a theater”. All made up hogwash. All made up for the same reason: to give government powers it doesn’t legally have, and to deny people rights they do legally have”

    You think ‘incorporation’ gives government rights?

    imdw (c5488f)

  110. To say that we don’t know what is meant by the P&I clause is disingenuous at best, and an outright outrage at worst.

    Well, no. There’s always the cynicism option.

    Kevin Murphy (0b2493)

  111. In my neighborhood, cynics are shot, without a “compelling state interest”.

    AD - RtR/OS! (4a0d27)

  112. “You think ‘incorporation’ gives government rights?”

    Governments don’t have rights. States don’t have right. Only men (aka people) have rights.

    And, there’s no such thing as “incorporation”, except in the business world.

    Dave Surls (bb8611)

  113. Where does the jury sit in the SCOTUS?

    They don’t need to. They have more power than Supreme Court Justices in many contexts. For example, if the jury acquits, not even the Supreme Court can do a thing about it.

    Patterico (cc3b34)

  114. “And, there’s no such thing as “incorporation”, except in the business world.”

    Really. And you think this is something that is ‘made up … to give government powers it doesn’t legally have, and to deny people rights they do legally have’

    imdw (41b4a1)

  115. What process? Would someone convicted under the laws at issue here be denied their right to a jury trial or their confrontation rights? I don’t see anything about that in the decision.

    My goodness, you are an unimaginative creature, aren’t you?

    I was being facetious: if someone broke into my house, I’d use little bits of lead to convince him that he really should have put me on trial instead.

    Steverino (1b3695)

  116. “They don’t need to.”

    Well, of course the jury has no need to sit, that’s because there isn’t any jury. And if the SCOTUS decides they don’t like a particular conviction, they can override a jury that convicts by simply declaring a law, or a provision of a law unconstitutional.

    “For example, if the jury acquits, not even the Supreme Court can do a thing about it.”

    That’s true, you don’t really see the jury-free higher courts reversing an aquittal, but the government has other ways to get around that one, if they want to bad enough. An example of this would be a murder case where one is acquitted in a trial at the state level, the federal government doesn’t care for the jury’s decision, and then prosecutes on a civil rights charge, thereby effectively overriding the decision of the jury, possibly justly, possibly not.

    The government has ways to get around just about anything a jury decides, whether by judicial fiat, or some other method, when you get right down to it, so I don’t think you can say that any particular part of my comment is wrong.

    What you could say is is that most of the time the government doesn’t do that, which is true, but if they think an issue is important enough, they’ll do what they need to do, including overriding what juries say, in order to get the desired result.

    Doesn’t look to me like juries have too much power.

    Dave Surls (bb8611)

  117. “Really. And you think this is something that is ‘made up … to give government powers it doesn’t legally have, and to deny people rights they do legally have’”

    Obviously, I think it. That’s why I said it.

    Dave Surls (bb8611)

  118. Dave Surls, with respect to incorporation: you can deny that incorporation exists, but it will avail you not a bit. There’s an interesting philosophical argument about existence, and whether something exists if people believe in it; but I think that legal constructs can be held to exist if the legal system believes itself bound by them.

    I think it would be more useful to deny that incorporation is legitimate than it is to deny that it exists.

    —————

    Kevin, I don’t think I’m being cynical when I say that I don’t know what P&I means, or when I say that the court system doesn’t know what P&I means. I think I’m stating fact.

    I think you’re right that the problem is that nobody has tried to understand it, and that a court killed it off precipitously for reasons which were ultimately unjust. But I also think it was, by its very nature, an unclear term whose meaning was going to be in dispute. Absent some sort of exhaustive and specific list, “priviliges and immunities of citizens” appears to me to be a political compromise, designed to let members of opposing political blocks vote for it while expecting that it means what they want it to mean and not what the other guy wants it to mean … and it is exactly those kinds of terms which are difficult to define in retrospect.

    —-
    AD – RtR/OS:
    To say that we don’t know what is meant by the P&I clause is disingenuous at best, and an outright outrage at worst.

    I’m having a very difficult time reading that sentence and not concluding that you are calling me a liar at best and an agent provocateur at worst. I assure you, I am neither. While I’ve done some research into nineteenth century primary source materials, I have not studied this topic in particular, and I have nothing other than rank suspicion as to the intended meaning of the clause. I know that the federal court system accords the clause next to no meaning, and I would be extremely surprised if more than a tiny handful of historical specialists knew what the term was intended to mean.

    aphrael (9e8ccd)

  119. “you can deny that incorporation exists”

    It exists in the addled minds of judges, just not in the Constitution.

    Dave Surls (bb8611)

  120. “Obviously, I think it. That’s why I said it.”

    So how does it do that?

    imdw (c990d8)

  121. NRA: it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don’t prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.
    .

    Me, paraphrasing NRA: Those cases held that states could require a permit to conduct an armed military parade on public property, and we don’t disagree with the logic that because states can require a parade permit they can also prohibit keep and bear arms. Instead of looking at what those cases really say, we urge looking away from those cases.
    .

    I understand that the NRA has to be deferential to the lying Courts; but it has no such duty to the public. I think the NRA is pathetic in terms of educating the public about the Presser and Miller cases. I’m glad I’m a life member, I won’t give ‘em a dime more. I’ve come to the opinion that the country would have been better off if Heller had gone the other way.

    cboldt (3d73dd)

  122. I think that the Privileges and Immunities clause was, at a minimum, intended to protect interstate travel and settlement/resettlement of the West and Northwest by U.S. citizens. We had just come out of a civil war, with ten years of guerilla fighting before that, and Kansans did not like Missourians, Missourians did not like Kansans, Illinoisians did not like Mormons, former Confederates did not like former Uninionists, Baptists did not like Irish Catholics, ranchers did not like homesteaders ….

    nk (157acd)

  123. This Administration DOES NOT believe there is a right to Self-Defense.

    Dr. Tiller gets gunned down. Obama and Holder order extra security to Abortion Clinics where babies are killed. They belive the baby killers must be protected at all cost.

    2 Soldiers in uniform outside a recruiting office are gunned down in Arkansas. Obama and Holder are silent. No extra security is ordered and the soldiers and recuiters remain unarmed clay pigeons for every Jihadist Obama, Holder, and Napolitano refuse to track or lock up. Soldiers mean nothing to this administration. No need to protect the protectors of America and her freedoms.

    Holder’s DOJ even turned loose New Black Panthers who intimidate voters with weapons at polling places. Nope, you don’t have a right to self defense, just send the police to photograph your dead body on the pavement because to Obama and Holder, you deserve it.

    PCD (02f8c1)

  124. There has been an awful lot of “precedent” established over the years that seems to be out dated, incorrect or distorted over time and through the long chain of cases leading to some very distorted views of what the laws mean. i.e. Heller states that the right to keep and bear arms is a personal right, not a states right. Does the 2nd or 7th court rely on this to determine whether or not a city can restrict that right? No. The continue to look at “precedent” instead of looking at a more recent SCOUS case that on it’s face would seem to over-rule their “precedent”.

    Yet another reason why most of the unwashed masses have no faith in the “justice” system.

    And would someone provide a logical explanation of the convoluted “logic” that was used to say the Bill of Rights and the amendments to the constitution don’t automatically extend to all the people of the United States? Because no plain reading of the constitution could possibly be interpreted to mean that.

    Or maybe I am just one of those people with an overwhelming hatred of the “system” that seems more and more to be designed for the benefit of politicians, lawyers and judges than as a protection for the people from those same groups.

    (Yes, I know that there are good lawyers and judges. Rare but they exist. Politicians, not so much.)

    Jay Curtis (8f6541)

  125. Because no plain reading of the constitution could possibly be interpreted to mean that.

    What?

    The plain language of the First Amendment says “Congress shall make no law …”. It requires a convoluted reading to say that this applies to the states.

    aphrael (9e8ccd)

  126. Yes, but the 2nd says “…the right of the People to keep and bear arms shall not be infringed…” with no limiting clause such as “Congress shall”, therefore, it would seem to apply to all levels of government within the Several States; and, at the time of drafting the 14th, the right to arms was considered one of those “Privileges and Immunities” held by an American Citizen that required explicit protection against usurpation by the States, along with the rights to property, contract, and travel.

    AD - RtR/OS! (1f03ac)

  127. AD – RtR/OS: yeah, I think it’s clear that the right to bear arms applies against the states, no matter which theory you are using to apply the bill of rights to the states. As I said before, i think it applies irrespective of the second amendment.

    aphrael (9e8ccd)

  128. It is interesting that many of the original 13 states have an “arms” right within their constitutions, but many, and a lot of the subsequent admissions too, do not. Clayton Cramer has done a lot of research on this aspect of originalism, which can be found in the archives at his site (claytoncramer.com).
    So, though it should apply irrespective of the 2nd, the fact that we have untold tens of thousands of local gun-control laws seems to point to the fact that the states don’t seem to feel that it does, lacking an incorporation ruling from the Supremes.
    I certainly look forward to the great pretzel-twisting in the future as the Feds have to defend aspects of NFA-34 and GCA-68 from the plain reading of the 2nd, now that it has been recognized as an individual right.

    AD - RtR/OS! (1f03ac)

  129. “So how does it do that?”

    Because some judge says that I don’t have a right to own guns, because the 2nd Amendment hasn’t been “incorporated”, and then allows a state government to make laws that take my guns away.

    That’s how.

    Dave Surls (f584ed)

  130. In thinking about this more, I suspect in the back of their minds the 7th Cir. judges acted the way they did for the purpose of creating a split between Circuits (7th and 9th) on cases that specifically involved firearms. The 2nd Cir. case involved nunachuks.

    Creating this split so soon after Heller presents the Supreme Court with a very good vehicle to resolve this unresolved question — application of the 2nd Amendment to states under the incorporation doctrine.

    Those that favor incorporation should want this question to go to the Court now, while there seem to be 5 votes in favor. Obama is going to fill any new vacancy, and while the two most likely vacancies to come next are Ginsberg and Stevens, there is always the possibility of an unexpected vacancy through an untimely death of one of the conservatives.

    It takes 4 votes to grant cert., and on controversial issues the 4 votes usually come from the side that thinks it has 5 votes to pervail in the outcome.

    The NRA has asked the SCOTUS to take the case. It may well be that if the 2nd Cir case also has a cert petition pending, the SCOTUS could take it as well, which would then mean that Sotomayor would not participate next year.

    But, to make sure there were 9 Justices, the Court could not grant cert. in the 2nd CIr., case, but only the 7th and 9th Cir cases.

    Extending Heller to the states under the incorporation doctrine would be nearly impossible to walk back from in the years ahead. Since the votes would seem to be there now to do it, the timing to do it is now — hence the 7th Cir. creates the split, giving the SCOTUS the vehicle to take up the question.

    Shipwreckedcrew (e73ed2)

  131. WLS…
    Yes, BUT, if the Court accepts the NRA petition of the case in the 7th, they wouldn’t normally schedule it for hearing until the next session beinning in Oct, when there could, or could not, be a vacancy – or, am I missing something in your argument?

    AD - RtR/OS! (1f03ac)

  132. AD – you’re right, but it is extremely unlikely that anyone will resign between now and then, which means the only concern is unexpected fatalities.

    aphrael (9e8ccd)

  133. “Because some judge says that I don’t have a right to own guns, because the 2nd Amendment hasn’t been “incorporated”, and then allows a state government to make laws that take my guns away.

    That’s how.”

    See the problem is that you’re looking at this backwards. Incorporation is what allows judges to go ahead and apply the bill of rights to the states. Without it, you’d be up shits creek.

    imdw (c5488f)

  134. Oh, I get it. A woman has an unfettered right to kill her unborn fetus unless her life depends on it, in which case she doesn’t.

    Xrlq (62cad4)


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