What Judge Reinhardt missed

Eugene Volokh’s post below discusses a dissent by the Ninth Circuit’s Judge Reinhardt in a capital sentencing case. Judge Reinhardt accurately states that carrying a gun is a Second Amendment right, to make the broader point that carrying a gun is not, in itself, illegitimate behavior. Judge Reinhardt could have strengthened his opinion by citing two cases in which the U.S. Supreme Court reversed capital convictions because the district court had improperly treated gun carrying as evidence of malign, homicidal intent.

The first of these is Gourko v. United States, 153 U.S. 183 (1894). John Gourko was 19 year old Polish immigrant.  He lived with  his brother Peter in a mining camp in the Choctaw Nation, in what was then the federal Indian Territory of Oklahoma.  Peter Carbo, another Polish immigrant, aged 45, has dispute with them over certain loads of coal, which he claimed the Gourko brothers had filched. According to a witness, Carbo threatened “to shoot John like a dog.” Carbo was easily capable of violence; he weighed 200 pounds, was very strong, and was considered dangerous. John Gourko, weighing 130 pounds, was considered delicate “and was deemed a quiet peaceable boy.”

One holiday, Carbo confronted John Gourko near a post office, shaking a fist in his face, and screaming at him. Witnesses feared the Carbo would kill John on the spot. About half an hour later, there was a confrontation between Carbo and John Gourko in a billiard hall. They argued, and then went outside. Gourko fired his pistol once over Carbo’s head, then twice to the body, killing him.

The Supreme Court’s opinion was written by Justice John Marshall Harlan. Justice Harlan noted that Gourko’s act might have been lawful self-defense, but that was not the precise issue as the case had come to the Supreme Court. Instead, the question was the validity of District Judge Isaac Parker’s instructions to the jury about the difference between premeditated murder and manslaughter. Judge Parker had told the jury that Gourko’s carrying of a handgun could be considered evidence of premeditated intent to kill, even if the carrying was purely for self-defense.

Justice Harlan, writing of a unanimous Court, disagreed: “the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes of self-defense, and if, independently of the fact of arming himself, the case tested by what occurred on the occasion of the killing was one of manslaughter only.”

Justice Harlan’s sympathy for Gourko may have had some basis in Harlan’s own life. When Harlan was a young man, his cousin (also named John Harlan) was prosecuted for killing a local character who, Justice Harlan later recalled, “advanced upon John as if to attack him.”  John Harlan (the cousin, not the future Justice) drew a pistol and killed the attacker. During and after the trial, which resulted in an acquittal on grounds of self-defense, the deceased’s “gang” had well-known intentions to kill cousin John Harlan at the first opportunity. Thus, John Harlan (the future Justice) and two other men kept a constant guard on their cousin; during this time, the two men and the future Justice “were heavily armed.”  Justice John Harlan was also personally familiar with non-criminal reasons for carrying firearms, being an avid hunter and target shooter, and a commander of the Kentucky militia during the Civil War.

Gourko’s conviction and death sentence were reversed, and he was granted a new trial. He pled guilty to manslaughter, and was sentenced to four years in prison.

The second case is Thompson v. United States, 155 U.S. 271 (1894):

Thompson was decided in the term following Gourko, and it too came from District Judge Parker’s court.  Thomas Thompson was a 17 year old Creek Indian farmboy. Half a mile away lived Charles Hermes, who made threats to kill Thompson if Thompson came near the Hermes farm.

One afternoon, Thompson was sent to deliver a bundle to a woman who lived a few miles away. The only road went by the Hermes farm. Passing by the farm, Thompson got into a heated argument with Hermes, who repeated his threats to kill Thompson.

After delivering the bundle, Thompson, realizing that the only road home was the road that ran by the Hermes property, borrowed a Winchester rifle.

As Thompson rode home, Hermes’ sons called out to him. One of the sons, Charles Hermes, started towards a gun that was propped on a fence. Thompson, believing that Charles Hermes intended to kill him, shot Charles Hermes first, and then fled on horseback.

Charged with murder, Thompson pleaded self-defense. In the Thompson trial, Judge Parker instructed the jury that the jury was free to conclude that Thompson had provoked the trouble, and therefore lost his right to self-defense; according to Judge Parker, Thompson could be viewed as the instigator of the confrontation because he had armed himself and returned to a place where he knew Hermes would be.

Similarly, the judge instructed the jurors that to the effect that they should not convict Thompson of manslaughter, rather than murder. By arming himself, Thompson had shown the kind of deliberation and premeditation which amounts to murder.

Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson’s conviction because of the defective jury instructions. Merely being armed, and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble, or that he intended to kill Hermes, the Court said.

Concluded the Court: the trial court’s error “is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U.S., previously cited, the language of which we need not repeat.” Thompson was freed, and was not retried.  The unanimous opinion was written by Justice George Shiras, Jr.

Gourko and Thompson are among The Self-Defense Cases, a set of decisions from 1893-96, plus the later Brown v. United States, 256 U.S. 335 (1921) (Holmes, J.) (“Detached reflection cannot be demanded in the presence of an uplifted knife.”). These are the cases in which develop the no duty to retreat rule, which we today sometimes call “Stand Your Ground.” As Justice Harlan wrote in Beard v. United States, 158 U.S. 550, the victim of a violent attack

was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

(Emphasis added.) The cases are discussed in my article  The Self-Defense Cases: How the Supreme Court Confronted a Hanging Judge in the Nineteenth Century, 27 Am. J. Crim. L. 294 (2000) (cited in United States v. McElhiney, 275 F.3d 928, 935 n.2 (10th Cir. 2001)). The article contains the citations for all the quotes in this Post.