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Fred Thompson vs. The UN's anti-self-defense campaign

Earlier this week, Sen. Fred Thompson wrote to Field & Stream magazine, criticizing the UN's campaign against the human right of self-defense. The Thompson campaign touted the letter on its website, and the letter got a favorable reception among many pro-Second Amendment bloggers.

The Thompson letter, including its quotation of the great Dutch philosopher of international law, Hugo Grotius, appears to have used as a source the Kopel/Gallant/Eisen article "The Human Right of Self-Defense," which is forthcoming in volume 22 of the BYU Journal of Public Law. (We're in the middle of the cite-check right now, so the draft on my website is not the final version. And kudos to the BYU staff for its hard work on a monstrous cite-check with hundreds of sources, many of them not in the collection of an ordinary law library.)

Sen. Thompson's letter prompted criticism from Kevin Drum of the Washington Monthly and Stephen Benen, both of whom relied on a refutation written by UN Dispatch, a weblog funded by the UN Foundation.

Today, the Knoxville News reports that it was UN Dispatch that got the facts wrong. The Special Rapporteur's Report which Thompson criticized (and which was adopted and endorsed by a submcommission of the UN Human Rights Council) quite explicitly says that personal self-defense is not a human right.

It's been a long time since a major presidential candidate quoted Grotius, and my view is the more Grotius in America's public debates, the better. I hope Pufendorf starts to get some attention too.

It's rather telling that the UN's American defenders fail to directly address an indisputable fact: U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense, and the subcommission, pursuant to the report, has declared that all national governments are required by international human rights law to implement various gun control provisions--provisions which, by the UN's standards, make even the gun control laws of New York City and Washington, DC, into violations of international law because they are insufficiently stringent. (See page 14 of the draft BYU article.)

Maureen001 (mail):
Believing there is no right to personal self-defense goes a long way to explaining UN response (or lack thereof) in Rwanda and Darfur. It also brings to mind such images as were captured in German death camps and Cambodia killing fields.

Fortunately for Americans, our Second Amendment right is God-given and therefore, not subject to elimination or revision by any UN council.

I can remember as a child seeing a large billboard posted along a road that called for impeachment of Chief Justice Earl Warren and demanded that we get out of the UN. It was proudly sponsored by the John Birch Society, a questionable organization, I concluded based on my father's responses to my questions about it, and by extension, a questionable sentiment expressed on the billboard. Over the past few years I find myself aligning in agreement with the sentiment, at least about getting out of the UN. When do we acknowledge it as the failed effort it has become, just as we did with the defunct League of Nations? Personally, I would like to see a new worldwide organization started, one that allows membership of nations who have achieved or are actively in pursuit of a democratic form of government. We ought to be supporting what we believe to be government most beneficial to individuals, no?
11.3.2007 4:52pm
Swede:
According to the latest report from Johnson et al in the Scandinavian-American Journal (I'm cite-checking right now) the U.N. is required to kiss my ass.
11.3.2007 5:00pm
AF:
The UN Dispatch (a blog written by Mark Goldberg) did not "g[e]t the facts wrong," nor did the Knoxville News report that it did. The News said "I think Fred got it right and Goldberg's criticism is also valid" and "So, Fred Thompson says this report says X and you [Goldberg] respond by saying that this other thing says Y?" The News did not cite any facts that Goldberg got wrong. The News does say at the end that Goldberg "managed to get all of his facts wrong," but this appears to be turning Benen's words around for rhetorical flourish (the phrase is a hyperlink to Benen), not actually asserting that the Goldberg misstated any facts -- an assertion that would be unsupported by any evidence.

Bottom line: this is a straightforward political debate about the relevance of a UN Report -- nobody got any facts wrong.
11.3.2007 5:04pm
Tony Tutins (mail):
Interesting reading: Self-defence not a right, but a way to escape criminal liability. Sacrificing the rights of a minority for the good of the majority. Self-defence of individuals not recognized in international law, so no need to recognize in domestic law. Renewable licensing required, with mandatory storage inspections and targeted confiscations. No civilian possession of any military weapons. Part of the policy rationale: the "special needs" of women and children, and prevention of suicides.
11.3.2007 5:04pm
Tony Tutins (mail):
AF: the UN Dispatch selectively quoted innocuous-sounding parts of the salw_hr_report. This is dishonesty.
11.3.2007 5:09pm
Tony Tutins (mail):
"Mimimum effective measures" for the UN to require member states to adopt:

16. Minimum effective measures that States should adopt to prevent small arms violence, then, must go beyond mere criminalization of acts of armed violence. Under the principle of due diligence, it is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them.7 Recognition of this principle is affirmed in the responses to the questionnaire of the Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons which indicate widespread State practice to license private ownership of small arms and ammunition.8 The criteria for licensing may vary from State to State, but most licensing procedures consider the following:
(a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness.9
Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons.


Self-defence a right of States only, not individuals.

Self-defence is broadly recognized in customary international law as a defence to criminal responsibility as shown by State practice. There is not evidence however that States have enacted self-defence as a freestanding right under their domestic laws, nor is there evidence of opinio juris that would compel States to recognize an independent, supervening right to self-defence that they must enforce in the context of their domestic jurisdictions as a supervening right.
11.3.2007 5:27pm
Chris Bell (mail):
Professor Kopel has made this ridiculous claim before. In a thread some weeks ago he put up an article making the same argument (that the UN says there is no right to self-defense) and asked for comments.

In that thread I spent time cite checking the Kopel article and the underlying UN document. It says nothing of the kind, and Professor Kopel based his conclusions on selective quotations and twisted logic.

As the first page of the report says, "The principle of self-defence has an important place in international human rights law, but does not provide an independent, supervening right to small arms possession . . . ."

In other words, the UN document argues that the internationally recognized right to self-defense should not be used to override domestic handgun regulations. You can oppose that argument (even I question it), but it is flatly misleading to argue that the "U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense" as Professor Kopel does.

I'm sure Professor Kopel disagrees with me, so please go read the document he refers to and make up your own mind.

Here is my original criticism
11.3.2007 5:31pm
Anonymous Coward #39841:
I'm responding to the above post by Chris Bell questioning whether the UN says there is no right to self-defense:

it is flatly misleading to argue that the "U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense" as Professor Kopel does.


The final report submitted by Barbara Frey, Special Rapporteur to the UN Human Rights Councils's Sub-Commission on the Promotion and Protection of Human Rights, does deny that self-defense is a human right:

Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation.

(http://www.iansa.org/un/documents/salw_hr_report_2006.pdf, page 9). I don't know whether this report was officially "endorsed" by the UN, but there certainly are elements of the UN that deny that right of self-defense.
11.3.2007 5:56pm
SayUncle (mail) (www):
"nor did the Knoxville News report that it did"

Actually, I did say so when I said "Uh, Mark? Seems to me he managed to get all of his facts wrong."

After all, he said that Thompson was wrong and, then as proof, referenced something Thompson did not reference.
11.3.2007 6:00pm
Dan Hamilton:
Chris Bell

As the first page of the report says, "The principle of self-defence has an important place in international human rights law, but does not provide an independent, supervening right to small arms possession . . . ."


So the UN says you have the right to Self-defence BUT you have no right to any weapons!! If you don't have rights to small arms you don't have rights to swords, knives, clubs or any other weapons.

Great! The US says that you have a right to Self-Defence but no right to weapons. You want to try that again.

Without weapons what good is a right to self defence!!!

Only the the US or Liberals could ever say something THAT STUPID.
11.3.2007 6:13pm
Dan Hamilton:

Only the the US or Liberals could ever say something THAT STUPID.


Sorry should read -

Only the the UN or Liberals could ever say something THAT STUPID.
11.3.2007 6:15pm
Chris Bell (mail):
Again, read the report. I specifically argues that the right to self-defense should not be used to override domestic small arms regulations.

Dan Hamilton: Well, the report doesn't say that you can't have guns, just that small arms should be regulated. It doesn't include shotguns or hunting rifles or mace or many many other things that even stupid liberals can use for self-defense.

Notice how I responded without using all caps or distorting what you said. In-freaking-credible, isn't it?

Anonymous C: That is a strong sentence, and I feel that things like that led Professor Kopel astray. In the next sentence the report says that self-defense is a side effect of the right to life in general, which mitigates it somewhat.

My real argument is that Professor Kopel continually distorts the thesis of the report, which is stated in the paragraph right before the quote you offered:

This report discusses and recognizes the principle of self-defence in human rights law and assesses its proper place in the establishment of human rights principles governing small arms and light weapons. Those opposing the State regulation of civilian possession of firearms claim that the principle of self-defence provides legal support for a “right” to possess small arms thus negating or substantially minimizing the duty of States to regulate possession. The present report concludes that the principle of self-defence has an important place in international human rights law, but that it does not provide an independent, legal supervening right to small arms possession, nor does it ameliorate the duty of States to use due diligence in regulating civilian possession.


Try to reconcile that with the summaries that Professor Kopel gives.
11.3.2007 6:33pm
SayUncle (mail) (www):
Chris Bell:

If you look at the report i reference, it states clearly:

“20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another.

Seems Kopel is right to me.
11.3.2007 6:40pm
Cornellian (mail):
Wow, criticizing the UN - Thompson's really going out on a limb with the Republican base.
11.3.2007 7:10pm
dafydd (mail) (www):
Fortunately for Americans, our Second Amendment right is God-given and therefore, not subject to elimination or revision by any UN council.


As I recall, the US Constitution was written by men, and not God. In fact, I don't believe the Constitution contains any references to God. But, I could be picking nits...
11.3.2007 7:13pm
Tony Tutins (mail):

As I recall, the US Constitution was written by men, and not God.


You could ask John Locke where our natural rights came from. If you believe God is our Creator, as many do, then He is the source of all of our rights.
11.3.2007 7:22pm
Tony Tutins (mail):
Have any of you law profs ever spoken to Prof. Frey? Perhaps she could be persuaded to seeing how the right to self-defense is (1) a human right stemming from our nature as human beings, that (2) to be able to exercise it, necessitates the means of self-defense.

Otherwise, to be true to her name she should become Barbara Sklave.
11.3.2007 7:27pm
Winghunter (mail) (www):
First and foremeost; If the Second Amendment is an inalienable right it is also inalienable for every human being on earth at birth...think about it.

Secondly, the names on the list of U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights members also reads like the members of the "I will be the next Ghenghis Khan" Club. Is it really any wonder this is what they want to control not just their own populations but, to render every country in the world totally defeneseless!?


Fred Dalton Thompson - 44th President of The United States of America!
11.3.2007 7:38pm
Smokey:
Anyone who thinks that the UN's current proposal to disarm U.S. citizens will be its final position is being foolish. This is just one small step in their anti-U.S. scheme.

The UN is composed of insufferable thieves. I look forward to the day their U.S. money hose is shut off. [Recall that some $20 billion disapperared when it went through the sticky fingers of UN kleptocrats.] There is zero accountability for the many $billions we pay to subsidize this nest of thieves; the UN has steadfastly refused to allow any independent accounting of their activities. They only hint in the vaguest possible terms how they spend all the money shoveled into their pockets every year.

The UN's proposal for a "World Tax," equal to .7% of GDP, would saddle U.S. taxpayers with $300 billion+ new taxes every year -- which would be funneled through the theftocrats running their scam. But since there was strong opposition to something called a "World Tax," the UN now calls the exact same proposal the "Millenium Development Goals." And of course, .7% of our GDP will never be enough. That's just the first small step.

If there were a referendum allowing Americans to vote on withdrawing from the totally corrupt UN, there's no doubt that U.S. citizens would vote in America's best interest. And most Americans would agree with Swede's post #2 above.
11.3.2007 7:55pm
AF:
SayUncle: I was giving you the benefit of the doubt, on the assumption that you didn't mean literally what was wholly unsupported by the evidence. Faulty assumption; my mistake.

Whether or not you said it, Goldberg simply did not get any "facts" wrong. He made an argument which you claim is weak. That is not the same thing.
11.3.2007 8:05pm
New Pseudonym (mail):
At a fundamental level, it seems to me that the UN report says that states have rights that individuals do not -- apparently including the right to use weapons to defend themselves.

What theory of the rights and powers of states is this based on?

By the way, as for citing Pufendorf, I always thought Witchee-Poo was a more interesting character.
11.3.2007 8:40pm
NJ (mail):
Chris, you...you out there. You say:

it is flatly misleading to argue that the "U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense"

Check out point header II.A.

(Note also that whenever self defense comes up, the report describes it as a "principle." It's described as a right only in scare quotes.)

But I actually might agree with the report. I don't have Lexis Nexis right now, but is self-defense ever described as a right in US law? We get a right to arms, but to defend ourselves, where in the living Constitution is that? Maybe it was so obvious Madison, et al., never got around to writing it down.
11.3.2007 9:00pm
teqjack (mail):
“20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. ..."

proscribed? The entire clause is nonsense, even substituting an E for the O.

Oh, and Chris "Well, the report doesn't say that you can't have guns, just that small arms should be regulated. It doesn't include shotguns or hunting rifles or mace or many many other things that even stupid liberals can use for self-defense." rifles and shotguns are "small arms."
11.3.2007 9:00pm
SayUncle (mail) (www):
"Whether or not you said it, Goldberg simply did not get any "facts" wrong. He made an argument which you claim is weak. That is not the same thing."

Err, i said both. As to what he gets wrong, well, the report for one thing. But point taken.
11.3.2007 9:09pm
Chris Bell (mail):
NJ, what I'm trying to say is that the report does NOT say that people shouldn't defend themselves (or anything remotely like that).

It says that self-defense is not an "right" that trumps laws regulating small arms.

Take a law saying "Anyone who wishes to own a firearm must undergo a background check and register their weapon." There are people who argue that this law violates a right to self-defense.

The report criticizes and rejects that argument. As part of that argument, the report necessarily criticizes an expansive "right to self-defense". (As you point out, the right to self-defense is not in the US Constitution or the European Charter of Fundamental Rights.)

But at NO point does the article argue that people shouldn't defend themselves or anything like that. That would be ridiculous, and I would join Professor Kopel in denouncing it. Of course people should defend themselves, as the report states repeatedly, but that principle should not undermine state laws regulating small arms.

Professor's Kopel's previous post on this started with this line:

Does a woman have a human right to resist rape or murder? Do people have a human right to resist tyranny? The United Nations Human Rights Council has said “no”

That, it my opinion, is incredibly misleading.

So all I am saying, to those who would respond, is this: Having read the report, don't you think the comment by Professor Kopel (stating that women have no right to resist rape) is a gross mischaracterization?
11.3.2007 9:22pm
Tony Tutins (mail):
Goldberg mischaracterised the right of self-defence in Article 51 as an individual right instead of what it actually is, a right of the Member states -- I would call that "getting a fact wrong."

Goldberg mischaracterised the applicability of the proposal only to recovering conflict zones -- it is intended to apply to all Member states, including the United States -- data from the United States is specifically cited as justification for this proposal -- I would call that "getting a fact wrong."

Based on this article, I would characterise Goldberg as either mendacious or stupid.
11.3.2007 9:24pm
Tony Tutins (mail):
Chris, to own a firearm you will have to provide a persuasive justification to government. This would be the only right of its kind. Substitute the right to abortion into the proposal, and tell me if it still sounds like a right to you.
11.3.2007 9:28pm
gattsuru (mail) (www):
NJ, the right to self-defense was considered a well-established point of law at the time of the Founding Fathers. Unlike the first four freedoms (commonly and constantly violated), the right to bear arms (see Battle of Concord, causes of), freedom from quartering of troops in times of peace (see Quartering Act), right to security in ones belongings (see Writs of assistance), the right to self-defense was seldom actively violated by the government or governmental law within the Founder's lifetime. It was often used to in argument to support these other rights.

From a "living document" viewpoint, it's not hard to associate an individual's right to life (part of existing law due to the Universal Declaration of Human Rights) with the right to defend that life.

From an originalist viewpoint, one could note Samuel Adams and Thomas Jefferson's pleas, which cited an explicit right to self-defense.

Regardless, most states include an explicit right of self-defense in their very constitution; Pennsylvania, Indiana, California, and Ohio, at the very least, do. I'm sure it's in place for most states.
11.3.2007 9:33pm
M. Simon (mail) (www):
You could ask John Locke where our natural rights came from. If you believe God is our Creator, as many do, then He is the source of all of our rights.

I believe they come from the inflation after the big bang. But that is just a belief. It could be something else.
11.3.2007 9:42pm
A. Zarkov (mail):
Most rational people believe that they have a right of self-defense, and don’t care what the UN thinks. They will exercise that right should the need arise regardless of what the UN or even US courts and statutes say. There is always jury nullification, and I for one would never convict a person who reasonably defended himself. If need be I would disregard the instructions by the judge, and there is nothing he can do about it. A juror can find a person not guilty for any reason or no reason. This is our ultimate protection against rouge UN bureaucrats and other riff raff.
11.3.2007 9:53pm
Nate W. (mail):
@ New Pseudonym:

Probably a Westphalian model of the powers and rights of states. The underlying rationale is that the right of self-help and self-defense is a right that humans gave up upon entering the social contract in exchange for the government's protection. There is no enforcement mechanism with authority above states, so states exist in a state of nature--with the right to self-help fully intact.
11.3.2007 10:02pm
Truth Seeker:
Fortunately for Americans, our Second Amendment right is God-given and therefore, not subject to elimination or revision by any UN council.

Isn't there a new leftist theory that international treaties trump the US and state constitutions? All we need is a few SC justices appointed by Hillary and bye-bye guns.

Fred for president!
11.3.2007 10:07pm
glangston (mail):
It becomes harder to judge the sincerity of the UN's belief in self-defense when they insert items like this into their arguments. Obtuse and weasely.

International law does not support an international legal obligation requiring States to permit
access to a gun for self-defence.


Thus, international criminal law designates self-defence as a rule to be followed to determine
criminal liability, and not as an independent right which States are required to enforce.
11.3.2007 10:22pm
TDPerkins (mail):
As the first page of the report says, "The principle of self-defence has an important place in international human rights law, but does not provide an independent, supervening right to small arms possession . . . ."


Until a superior means of self defense is available, then a right to self defense is only effectively respected in law if there is legal small arms possession. If the UN is set on a contrary opinion, then it does not recognize a right to self defense. If it demands or merely endorses that undue burdens be placed on small arms owners, it does not recognize a right to self defense.

In other words, the UN document argues that the internationally recognized right to self-defense should not be used to override domestic handgun regulations.


So the UN, the right to self defense is like the Constitution here in the US? Void where prohibited by law?

NJ, what I'm trying to say is that the report does NOT say that people shouldn't defend themselves (or anything remotely like that).

It says that self-defense is not an "right" that trumps laws regulating small arms.


Which is identical in practice to saying there is no right to self defense. It's like saying the right to vote doesn't trump local poll tax laws.

And it's just as respectable an idea and argument as the poll tax laws circa Jim Crow.

The underlying rationale is that the right of self-help and self-defense is a right that humans gave up upon entering the social contract in exchange for the government's protection.


Of course, to the extent that is an accurate characterisation of the Westphalian model as applied to America, it is nonsense. It is not possible to give up an inalienable right, merely to promise to stand before your peers who will sit in judgement of you if you appear to have employed an inalienable right in contravention of the law.

If otherwise inalienable rights really can be given up to government as part of the social contract, then following orders is in fact a justification for anything. Hence, inalienable rights should be written of and spoken of without apologies or scare quotes--because nothing is scarier than that they are not commonly held to in fact exist inalienably.

Yours, TDP, ml, msl, &pfpp
11.3.2007 10:43pm
Chris Bell (mail):
TD, well that's a fine response. As I said, I think there are good arguments to be made. What I am criticizing is Professor Kopel. He chose not to make your arguments, but instead chose to say that 'the UN doesn't think women should resist rape' and (in another article) that 'the UN thinks genocide victims shouldn't resist'.

Both of those claims are ludicrous mischaracterizations.
11.3.2007 10:58pm
AF:
Goldberg mischaracterised the right of self-defence in Article 51 as an individual right instead of what it actually is, a right of the Member states -- I would call that "getting a fact wrong."

Goldberg mischaracterised the applicability of the proposal only to recovering conflict zones -- it is intended to apply to all Member states, including the United States -- data from the United States is specifically cited as justification for this proposal -- I would call that "getting a fact wrong.
"

These statements, besides being untrue, display a deep misunderstanding of the word "fact."
11.3.2007 11:06pm
Tony Tutins (mail):

These statements, besides being untrue, display a deep misunderstanding of the word "fact."

Funny, I saw the hands wave, but I didn't see my statements refuted.

A fact: a real state of things, as distinguished from a mere statement or belief; an assertion of the truth. If I said Americans were guilty until proven innocent, or that married women had no right to abortion, I would have gotten the facts wrong, just as Goldberg has.
11.3.2007 11:16pm
BruceM (mail) (www):
Why is it that Republicans fully support the existence of a robust self-defense defense to criminal charges, but are firmly against all other defenses (insanity, diminished capacity, the "it was a monday" defense, etc.)?

I firmly believe the legislature has absolutely no business dilineating what defenses may be used in front of a jury by a criminal defendant. The legislature can decide what is and is not a crime, but not what is and is not a defense to those crimes. And it's always the Republicans who try to limit available defenses by taking them away legislatively or limiting their scope of application.

A criminal defendant should be able to get a jury instruction on any defense he wants; if the defendant can convince the jury that he should be acquitted of possession of drugs because he downloaded it on a monday, then the prosecution failed to do its job. The law should not bar the defendant from using that, or anything else (such as "he needed killing" ... "the victim was black/white/red/yellow" ... "I needed those drugs for medical purposes") as a defense.

I think any limit on what can be used as a defense is flatly unconstitutional, although I know there is a long history of caselaw to the contrary (made by Republican judges like Scalia).

Republicans are also hypocritical when it comes to using guns for self-defense. They automatically think of a white homeowner shooting a big black guy who broke into his house to steal his stuff and rape his wife. If Republicans really believed in the right to use firearms in self-defense, they would be against the law banning felons from possessing firearms, even in their homes for self-defense use. Why should a convicted felon not enjoy the 2nd Amendment and be able to protect himself from other felons who try to break into his/her home? The very idea of taking away someone's right to possess and use a firearm to defend one's home seems to me the ultimate expression of the liberal nanny-state. So why do Republicans support it so staunchly? At least let them possess the guns in their homes.
11.3.2007 11:41pm
Tony Tutins (mail):

Why should a convicted felon not enjoy the 2nd Amendment and be able to protect himself from other felons who try to break into his/her home?

Judge Kozinski pretty much agreed with this position, in US v. Gomez (Feds failed to protect convicted felon from his former associates; felon armed himself for self-defense, was convicted as felon-in-possession.
11.4.2007 12:05am
Ryan Waxx (mail):
Good job, BruseM. Way to get whitey! I'd applaud your courage, but frankly bashing large sections of the population racist because they don't vote the way you think they should vote is par for the course among some 'thinkers' here and requires about as much courage as holding a gay pride march in West Hollywood.

A felon should not own a handgun because he's proven that he cannot be trusted... a felony is a serious crime, with serious consequences. Other rights are restricted as well (being able to have a gun but not vote? have you lost all your marbles?), and employment where trust is required is no longer an option.

However it must be said that the current trend of felonizing everything is weakening that argument over time. Witness the rise of the phrase "Violent Felony" as people begin to need ways to separate the serious felonies from drug possession or having sex as a teenager with another teenager. Perhaps we need to change the law to a "violent felons" standard instead, but no sane person would make a handgun in the hands of a rapist legal.
11.4.2007 12:09am
whit:
as usual, bruce blames republicans...

yawn...

his selectivity is amazing

let's deal with facts...

what MISDEMEANORS prevent misdemeanants from carrying firearms?

answer: domestic violence offenses

what other people are also prohibited from carrying firearms? those who merely have a protection order against them FOR DOMESTIC VIOLENCE

iow, under laws OVERWHELMINGLY supported, invented and promoted by democrats (and specifically leftist feminists), laws were passed (Violence Against Women Act etc.) that prohibit somebody from gun possession merely because somebody established by a mere PREPONDERANCE that they have reason to fear for their safety from a person with whom they have or had a domestic relation (married, kids in common, dated, lived together at some point, related etc.)

personally, i don't think that people's right to carry should be suppressed for NONVIOLENT felonies, but i agree its reasonable for violent ones.

but it's dems/leftists who push(ed) for laws that take away 2nd amendment rights based on a MUCH lower standard of evidence (civil) AND where there isn't even necessarily a crime committed at all (protection order) let alone proved.

i don't think we needed to get into a dem vs. repub thang here. but... since bruce started his repub bashing, i felt it important to point out who has done BY FAR the most to restrict these things.

i also agree that the felonization of stuff is problematic. there are a lot of crimes that are felonies that should not be. of course with sentencing the way it is, they are punished like petty misdemeanors (probation etc.) but they are technically felonies.
11.4.2007 12:21am
Anonperson (mail):
There actually is a serious policy debate to be had here, but it seems that Kopel and some others are not interested in that, but rather in demonizing the UN. If one reads the report in its entirety, it's clear that the report is not claiming that a woman who is about to be raped should not legally be allowed to defend herself.

Rather, the report is really about self-defense as it relates to arms control. It is saying that an individual right to self-defense cannot be used a justification to eliminate all attempts at arms control.

For those of you that are up in arms about this (pun intended), the truth is that many of you probably agree with this general principle without realizing it. For example, how many of you support allowing small arms to be sold freely in Gaza and the West Bank? But if you support a right to self-defense that trumps all possible justifications for arms control then you must allow this.

There are plenty of substantive disagreements, debates, and criticisms that one can have about the UN. But demonizing them is silly and pointless. Unfortunately, the report has enough poorly worded sentences so that it is too easy, in this particular case.
11.4.2007 12:38am
highcotton (mail):
FDThompson and TDPerkins: 1; UN apologists: 0
11.4.2007 12:46am
Steve White (mail) (www):
In trying to follow the debate and not the personal responses, let me ask this question --

The constitution for the state of Illinois, Article 1, Section 22, says this:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Question: is this invalidated if we have no inherent right to self-defense?

Subject to police power means that we can, of course, bar felons from owning weapons, we can regulate certain classes of weapons (no machine gun for you!), and we might be able to require registration. But if international law, per the UN report, says that states have not just the right but the duty to restrict small arms to its citizens, and this international law is indeed somehow enforceable, then can a state in a federal state, or a province in a unitary state, declare to the contrary?
11.4.2007 1:04am
BruceM (mail) (www):
"A felon should not own a handgun because he's proven that he cannot be trusted... a felony is a serious crime, with serious consequences."

Ryan, I completely disagree. 200 years ago that may have been true, when there were about a dozen common-law felonies. Possessing certain leaves is not a "serious crime" no matter what the government and its propaganda machine may say. Nowadays, very few felonies are truly malum in se and even fewer felonies have any relevance to the trustworthiness, or lack thereof, of the convicted felon. Even those that do, such as perjury, forgery, counterfeiting, fraud, theft, and embezzlement have no bearing on whether the defendant can be trusted with a firearm, only other people's money. Also, keep in mind that nearly all of the aforementioned crimes are felonies only at a certain dollar amount, below that threshold they are misdemeanors. A person who defrauds someone out of $1499 is convicted of a misdemeanor and can still possess a gun; however, if he had defrauded his victim out of one more dollar and crossed the $1500 threshold, he is guilty of a felony and that one dollar means he can't be trusted with a gun?

Also, under federal law, merely being under indictment for a felony means you cannot legally possess a firearm. You don't even need to be convicted! It boggles my mind as to how that has withstood constitutional muster, even just from a procedural due process standpoint, second amendment aside.

The only crimes that have any bearing on one's level of responsibility with firearms are those crimes that involve the violent, unlawful use of a firearm. If you rob a bank with a firearm, there is a plausible claim that society cannot trust you from that point forward with a firearm. Even so, once you serve your time and pay your debt to society, you should not be barred from possessing a firearm, especially in your home. It's a matter of public record who felons are, and thus it's a matter of public record which homeowners do not (or, at least, may not) have guns in their homes. If someone was planning on robbing a house, they'd be smart to rob a felon who presumably does not have a gun in the house. The government has no right to tell someone they can't protect themselves, their family, and their home with a firearm.

With the possible exception of nuclear, biological, and chemical weapons, I believe the government has absolutely no right to tell us what we cannot possess in the privacy of our own homes. And I'm not even entirely sure about NBC weapons. If people take a comprehensive safety class, maybe get a required license, and have the proper means and facilities to keep it safe, I lean towards allowing them to possess all the nuclear warheads, smallpox, and VX nerve gas they want, with the caveat that they are stricly liable for anything that happens. People should most certainly be permitted to own any conventional firearms they want, no matter what evil-sounding label the democrats label them with ("Assault weapons" or "death weapons" or "Slaughter guns" or "Rape guns").

Whit: the democrats/liberals are always anti-gun and want to take away all guns. That's why in my prior post I noted my surprise that it's republicans who say they support self-defense but in the same breath support all these laws about who cannot possess firearms related to felonies (convicted felons, people under indictment for a felony, etc.). The only time a felon should not be permitted to possess a firearm is in prison. I'm not republican bashing, I'm pointing out the hypocrisy in one of the few parts of the republican platform I fully support (strong and individual 2nd Amendment rights).
11.4.2007 1:22am
Ryan Waxx (mail):

With the possible exception of nuclear, biological, and chemical weapons, I believe the government has absolutely no right to tell us what we cannot possess in the privacy of our own homes.


Well, bully for you. That doesn't mean that Republicans are racists for not believing the same thing.

And you DID note the part where I said maybe we should change from barring all felons to barring violent ones, right? Because I don't see any hint of acknowledgment of that in your reply... indeed much of your reply makes less sense in that light.
11.4.2007 1:40am
Chris Bell (mail):
Steve White: Let me try to answer your serious question.

Basically, can a rule of international law trump a state constitutional rule? Sure it can. Since federal law trumps state law under the Supremacy Clause, all you need is for the international rule to be incorporated into federal law. (In other words, the federal government could do it - and it is just extra that the federal government did so by ratifying a treaty.)

Now, the US can easily avoid this by noting its objection to international resolutions and by refusing to sign and ratify treaties to the contrary. Additionally, there is a strong argument that the 2nd Amendment forbids the federal government from accepting any rule of international law not consistent with our Constitution.

You specifically asked: "is this invalidated if we have no inherent right to self-defense?" Errr, I'm not sure I can give a yes or no answer to that. The document at issue says that states must regulate small arms to protect life, which I would say fits the "police power" exception already in the statute.

You also asked: "But if international law, per the UN report, says that states have not just the right but the duty to restrict small arms to its citizens, and this international law is indeed somehow enforceable, then can a state in a federal state, or a province in a unitary state, declare to the contrary?"

I think I answered this question "no" already, but note that my answer has nothing to do with this issue but with federal-state relations in general.
11.4.2007 1:52am
Chris Bell (mail):
Anonperson - thank you, that is my point exactly.
11.4.2007 1:53am
glangston (mail):
(link)
AF:
Goldberg mischaracterised the right of self-defence in Article 51 as an individual right instead of what it actually is, a right of the Member states -- I would call that "getting a fact wrong."

Goldberg mischaracterised the applicability of the proposal only to recovering conflict zones -- it is intended to apply to all Member states, including the United States -- data from the United States is specifically cited as justification for this proposal -- I would call that "getting a fact wrong."

These statements, besides being untrue, display a deep misunderstanding of the word "fact."


The reference of Article 51 is taken from the Special Rapporteur, the fifth paragraph of the summary.



Article 51 of the Charter of the United Nations applies to States acting in self-defence
against armed attacks against their State sovereignty. It does not apply to situations of
self-defence for individual persons.

11.4.2007 1:04am
Ian H Spedding FCD (mail):
So the UN says you have the right to Self-defence BUT you have no right to any weapons!! If you don't have rights to small arms you don't have rights to swords, knives, clubs or any other weapons.

Great! The U[N] says that you have a right to Self-Defence but no right to weapons. You want to try that again.

Without weapons what good is a right to self defence!!!

Only the the U[N] or Liberals could ever say something THAT STUPID.


Not just them. You might want to look at the situation in the UK now.
11.4.2007 1:15am
Ryan Waxx (mail):
Socially, the UK is quite liberal. So I don't see the inconsistency.
11.4.2007 1:24am
Kev (mail) (www):
If there were a referendum allowing Americans to vote on withdrawing from the totally corrupt UN, there's no doubt that U.S. citizens would vote in America's best interest.


Withdrawal could be a good option; it would virtually gut the organization, since its headquarters would also (I assume) be kicked out of our country. But a few years ago, I came up with another possibility as well, which would be to simply add two words to the UN charter: No dictators.

Think about this for a moment. There's simply no room in civilized society for a nation that places all of its power in the hands of one man. So a revitalized UN (or its successor, should the US withdraw) would be more of a League of Democracies. Nobody would be forced to give up their despotic government, of course, but they wouldn't be allowed within the league if they did so--forfeiting the humanitarian aid, military intervention, etc., that comes with membership.

Save for the fact that China and Russia would bail, does anyone see a reason why this wouldn't work?
11.4.2007 2:04am
whit:
"Whit: the democrats/liberals are always anti-gun and want to take away all guns. That's why in my prior post I noted my surprise that it's republicans who say they support self-defense but in the same breath support all these laws about who cannot possess firearms related to felonies (convicted felons, people under indictment for a felony, etc.). The only time a felon should not be permitted to possess a firearm is in prison. I'm not republican bashing, I'm pointing out the hypocrisy in one of the few parts of the republican platform I fully support (strong and individual 2nd Amendment rights)."

ok. i can kind of grok your point now. my bad for not fully understanding it.

look, i usually vote repub, but i agree that people who commit non-violent felonies and/or "minor felonies" (which should be oxymoronic but isn't) should not have their right to carry taken away. heck, mark fuhrman of all people can't even carry cause he plead guilty to perjury (otoh, clinton did the exact same thing and of course didn't face penalties for perjury but i digress).

i am more concerned with the DV thing because like i said, all it takes is a misdemeanor, and even worse - merely a restraining order (which means that no crime necessarily was even committed let alone proved , and the standard is merely civil) in a DV case and a person is completely stripped of their right to carry

remember that orders are a civil hearing before a judge. no right to jury.

i've said it before, i'll say it again (common theme with me that i see firsthand in law enforcement), the law on drugs cannot TOUCH the law on domestic violence, when it comes to "getting around" constitutional rights and protections.

great article btw from seattle weekly (a liberal rag owned by village voice) that did a very fair article on some of the harms related to DV prosecutions at

www.seattleweekly.com
11.4.2007 2:05am
Maureen001 (mail):
I don't think for a minute that UN attempts to define and quantify "rights" in the confused and obscuring manor as expressed in the report was merely poor analysis or improper wording; there is blatant intent in the Special Rapporteur's statement: "Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation."

dafydd: You are correct. It is not the Constitution that labels our rights as 'God-given', it is the Declaration of Independence: "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, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..." Sounds to me like the justification to do away with the UN, that, of course, being my wish.

Steve White: "Treaties are a serious legal undertaking both in
international and domestic law. Internationally, once in force,
treaties are binding on the parties and become part of
international law. Domestically, treaties to which the United
States is a party are equivalent in status to Federal
legislation, forming part of what the Constitution calls ``the
supreme Law of the Land.''
However, the word treaty does not have the same meaning in
the United States and in international law. Under international
law, a ``treaty'' is any legally binding agreement between
nations. In the United States, the word treaty is reserved for
an agreement that is made ``by and with the Advice and Consent
of the Senate'' (Article II, Section 2, Clause 2 of the
Constitution). International agreements not submitted to the
Senate are known as ``executive agreements'' in the United
States, but they are considered treaties and therefore binding
under international law. Under the Constitution, a treaty, like a Federal statute,
is part of the ``supreme Law of the Land.'' Self-executing
treaties, those that do not require implementing legislation,
automatically become effective as domestic law immediately upon
entry into force. Other treaties do not become effective as
domestic law until implementing legislation is enacted, and
then technically it is the legislation, not the treaty unless
incorporated into the legislation, that is the law of the land.
Sometimes it is not clear on the face of a treaty whether
it is self-executing or requires implementing legislation. Some
treaties expressly call for implementing legislation or deal
with subjects clearly requiring congressional action, such as
the appropriation of funds or enactment of domestic penal
provisions. The question of whether or not a treaty requires
implementing legislation or is self-executing is a matter of
interpretation largely by the executive branch or, less
frequently, by the courts. On occasion, the Senate includes an
understanding in the resolution of ratification that certain
provisions are not self-executing or that the President is to
exchange or deposit the instrument of ratification only after
implementation legislation has been enacted.
When a treaty is deemed self-executing, it overrides any
conflicting provision of the law of an individual signatory
state. If a treaty is in irreconcilable conflict with a Federal
law, the one executed later in time prevails, although courts
generally try to harmonize domestic and international
obligations whenever possible..." according to a 2001 study prepared for the members of the Senate Committee On Foreign Relations, as edited by Richard F. Grimmett, Specialist in National Defense.

It appears to me that it is the responsibility of the President and the Senate NOT to enter into treaties that conflict with existing federal law, and that overriding issues must be present to justify entering into a treaty that conflicts with a state or states' laws. But if regard for US sovereignty and laws is set aside by treaty, what recourse is there for US citizens? The recourse of refusing to re-elect the rascals who sold out in the first place, and then "...The Constitution is silent on procedures for modifying or
terminating treaties, and agreement has not been reached
between the branches on a single proper mode.\21\ The general
rule is that international agreements are to be amended in the
same way that they were made, thus for treaties requiring the
advice and consent of the Senate..." The new rascals have to ratify a change to the old treaty. That's serious stuff, and the report goes on to say what portion of treaties have been modified or terminated is not known.(!)It also describes a lack of process by which the Senate may know what happens after a treaty has been ratified: "Once it has given its advice and consent to a treaty, the
Senate often lacks the information necessary to oversee further
action under the treaty. It does not receive a copy of the
resolution of ratification signed by the President, or the
proclamation, to enable comparison with the resolution of
ratification adopted by the Senate. It does not receive copies
of reservations or conditions established by other parties, to
enable a determination of whether the advice and consent of the
Senate should have been required. It is not always informed
when a treaty has entered into force or been modified in some
way..."

That's scary stuff to the distrusting, suspicious average Joe who hears how reckless, incompetent, and subversive elected officials are these days in every news broadcast!
11.4.2007 2:49am
BruceM (mail) (www):
Ryan, I did not mean to imply every republican is a racist. Down here in the south (texas), I have spoken with many people who profess to be republicans and who are of the opinion that they have the god-given right to shoot anyone who break into their home. Ask them to describe the person who they imagine would break into their home, and it's an african american. Stereotypes go a long ways.

It is an anomaly for the republican party to support a strong defense for criminal defenants to employ. Name ONE OTHER defense that the GOP believes criminal defendants should be permitted to use? If the (Bush) republicans had their way, they'd easily get rid of the 4th Amendment.

No there is only one defense, which they phrase as a right, that the republicans back. That is self-defense, and only self-defense with firearms. I don't know what their position is on self-defense with punching, kicking, and knives. I think they go even further and want self-defense to be a bar to criminal prosecution for people like them (race becomes a factor again). A white guy who shoots a black guy who broke into his home should not even have to have the case heard by a grand jury, and should never have to be prosecuted so as to have to rely on self-defense as a defense at trial.

However, a black guy who shoots another black guy in the street, who says the other guy pulled a gun on him first, or otherwise put him in a situation where he had to use a gun in self-defense, should have to have the case heard by the grand jury, should be indicted, and a jury should sort out his claim of self-defense.

Unfortunately, these are the people who make up jury pools in Texas.

So, to summarize my thoughts: not all republicans are racists. However, a large percentage of the ones who advocate a strong right to use firearms in self-defense, are only speaking of having that right apply in very narrow, race-dependent circumstances. And I believe they want it to act as a bar to prosecution, rather than a strong defense for a criminal defendant charged with murder/attempted murder/assault with a deadly weapon to be permitted to use at trial to avoid a guilty verdict.

Democrats, who believe nobody should be permitted to have a gun, let alone defend themselves, are no better, and far more insidious, IMHO.
11.4.2007 3:53am
BruceM (mail) (www):
Whit: I agree that DV orders resulting in one's loss of the right to possess a firearm are horrible. But you at least get to go to the hearing. I think losing your right to possess a firearm due to being under felony indictment is even worse. You have no right to speak at the grand jury, if you do speak at the grand jury you have no right to have your lawyer present. The grand jury makes its decision to true bill or no bill based solely on the one-sided claims of the prosecutor, who presents whatever evidence he/she wants, and leaves out whatever evidence he/she wants. And the entire grand jury proceeding is secret. The prosecutor could have just spent 30 minutes telling the grand jury that the defendant is simply a huge asshole and really, really should be indicted, it's their civic duty to indict him. I'm sure you've heard the saying that a prosecutor can get a grand jury to indict a ham sandwich. Well, that ham sandwich cannot possess a firearm until he's either acquitted of the felony charges, gets the indictment dismissed, or somehow gets his civil rights restored (via pardon or some other procedure, which vary from state to state).

Domestic Violence cases only result in a loss of the right to possess a firearm when there is some sort of anti-violence injunction, as I recall from the 5th Circuit's lame Emerson case from a few years ago. At least the hearing is not secret, is not ex parte, and both sides can be heard. It should take a lot more than that to cause someone to lose a right guaranteed to them by the Constitution. But such is the country we now live in. People don't want their rights, because other people can use those rights to hurt their precious children. Get rid of all rights to protect the children... the new national motto. And if you want to retain a right, you're a child-hater.
11.4.2007 4:04am
Arkady:

Fred Dalton Thompson - 44th President of The United States of America!



Well, maybe not. See this morning's Washington Post. These are the kinda guys that Arthur relished putting away.
11.4.2007 6:35am
davod (mail):
With regard to international law. I believe that( I know you will correct me if I am wrong), unlike most countries, our constitution stipulates that acceptance of a foreign treaty makes the treaty part of the law of the land.

This is why foreign treaties have to be fully debated by the public and Senate. The treaties are a way around come of the basic protections given in the Constitution.

This is why some on the SCOTUS prattle on about the need to look to International norms as well as the Consitution. I can see the UN position being pushed by at least two on the SCOTUS.
11.4.2007 6:48am
pete (mail) (www):
"A white guy who shoots a black guy who broke into his home should not even have to have the case heard by a grand jury, and should never have to be prosecuted so as to have to rely on self-defense as a defense at trial."

Damn straight. Same goes for a black guy shooting a white burglar.

Bruce: I am a Texas Republican who has had his home broken into twice now. If I was home at the time then I have the right to shoot whoever it was and should not be put on trial for it. On the first occasion there were no witnesses, but on the second occasion my Mexican-American neighbor saw the two hispanic thugs breaking in and went inside his home to get his get gun to do the shooting for me because that is what good Texas neighbors do for each other. They ran away before he could get back to the house with his gun.

A man's home is his castle and if you break into it you forfeit your right not to get shot. On the street you may or may not be justified in using force and it can take a trial to sort that out, but in your own home against a burglar you are justified in using lethal force because it is always obvious who the aggressor was. And all the Texas gun owners I know think it is perfectly fine to use swords or clubs or whatever weapon is handy for self defense. Guns, however, tend to be safer for the user because they can be used accurately at a distance.

Hope I get to be one of your juror's some day.
11.4.2007 8:36am
SirBillsalot (mail):
davod: your question is answered by Maureen001 3 posts above you. Ratified self-executing treaties are not a way around the Constitution. Self-executing ratified treaties and any other international agreement with the United States are subject to the Constitution. Reid v. Colvert (1957) ("[t]he prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined").

Ratified treaties are the law of the land, just like federal statutes are the law of the land. Both are subject to the Constitution and cannot invalidate its basic protections.
11.4.2007 9:00am
ronnor:
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed." Short and to the point!

Are we going to allow such organization such as the United Nations or its mostly thuggish members to parse our Constitution; I think not. What a mistake we are making when we give any credence to such a pitiful organization whose member states in an overwhelming number torture, kill and incarcerate their own citizens with out recourse to law. Have we become so foolish to invite slavery to our citizens by "trusting" the members of the UN. The 2nd Amendment is our guarantee of free government, its to give pause to those who would who would attempt to take those freedoms away. The United Nations has become a dangerous instrument and it is not a benign group of peace loving countries as most liberal/progressives think.
11.4.2007 9:33am
Toby:
BruceM

Republicans are also hypocritical when it comes to using guns for self-defense. They automatically think of a white homeowner shooting a big black guy who broke into his house to steal his stuff and rape his wife.

Well, now we know Bruce's obsessions, at least.
11.4.2007 11:07am
Tony Tutins (mail):
SirBillsalot: I'd feel more secure about this proposal if the USSC had pronounced that the Second Amendment (1) protects an individual right (2) that states can regulate only on bad behavior.
11.4.2007 1:59pm
TDPerkins (mail):
BruceM, there is a very great difference between right-to-self-defense, including the use of firearms, and other "criminal defenses".

The "right-to-self defense" defense rests on the defendant being in fact innocent of criminal behavior, where the other posits criminal behavior is established, even admitted, but necessarily with substantially or all but entirely mitigating factors which remove the culpability arising from volitional criminal behavior.

In fact, I think many of the "Republicans" you are criticizing would in fact be comfortable with the institution of a "guilty but insane" pleading as opposed to a "not guilty by reason of insanity" pleading. Call it nuance.

Yours, TDP, ml, msl, &pfpp
11.4.2007 2:10pm
TDPerkins (mail):
Toby wrote in response to BruceM:

BruceM wrote - "They [Republican, ed.] automatically think of a white homeowner shooting a big black guy who broke into his house to steal his stuff and rape his wife."


Well, now we know Bruce's obsessions, at least.


Heh.

Wish they were all that easy.

Yours, TDP, ml, msl, &pfpp
11.4.2007 2:12pm
Chris Bell (mail):

In fact, I think many of the "Republicans" you are criticizing would in fact be comfortable with the institution of a "guilty but insane" pleading as opposed to a "not guilty by reason of insanity" pleading.

Are you admitting that Republicans are fooled by labels and shiny objects?
11.4.2007 2:15pm
TDPerkins (mail):
Hello Chris Bell,

I don't think there's any misrepresentation in Kopel's saying (I'm paraphrasing 3rd hand), "The UN thinks you shouldn't defend yourself against rape" in comparison to the more exactly accurate but I think uselessly longer charge, "The UN thinks you shouldn't defend yourself effectively against rape."

I believe the FBI of all institutions gave proof in it's statistics that the single best way to escape unharmed from a potentially violent encounter with criminal behavior is to defend yourself with a gun.

Yours, TDP, ml, msl, &pfpp
11.4.2007 2:20pm
TDPerkins (mail):
Are you admitting that Republicans are fooled by labels and shiny objects?


I'm saying the philosophical outlook underlying the nuance in fact exists and should be understood if you are to make honest counterarguments.

Yours, TDP, ml, msl, &pfpp
11.4.2007 2:25pm
SirBillsalot (mail):
Tony Tutins,

Sure, I agree. In order for a provision of a treaty to be invalidated as contrary to the Constitution, we first have to have an accurate reading of the constitutional prohibition. If and when the Supreme Court affirms that the Second Amendment protects an individual right, you would have that protection.

Nevertheless, the fact that the construction of the Second Amendment is not yet settled does not change the fact that the construction of the supremacy clause and the relationship of treaties to the Constitution is settled. davod's statement was the reverse of black letter law on an issue that has been settled since 1957 (and Justices Black, Brennan, et al argued at 354 U.S. 1, 17, much longer than that).
11.4.2007 2:50pm
Cornellian (mail):
Sure, I agree. In order for a provision of a treaty to be invalidated as contrary to the Constitution, we first have to have an accurate reading of the constitutional prohibition. If and when the Supreme Court affirms that the Second Amendment protects an individual right, you would have that protection.

Since the text of the Supremacy Clause provides that both the Constitution and treaties "made under the authority of the United States" (which presumably means signed by the President and ratified by the Senate) are "the supreme law of the land" are there any Supreme Court cases stating what happens in the event of a conflict? Any cases stating that, in the event of a conflict, it matters whether the constitutional provision is an individual or some kind of collective right?
11.4.2007 3:03pm
BruceM (mail) (www):
Dammit, I just typed up a huge, long, detailed response to a few of the above posts, and when I submitted it, it said it contained banned words trying to sell drugs or advocate gambling. What the fuck. When I clicked back my post was no longer there. I'm not typing it all again. Screw it.

What the hell kind of censorship is this? I've never seen this here before. I didn't use any words remotely related to drugs or gambling. I insist on knowing what word I could have possibly used that was so offensive (no more offensive than fuck, shit, marijuana, or blackjack) that caused the Volokh Conspiracy to ban my post, and cause the entire thing to be erased.
11.4.2007 3:14pm
SirBillsalot (mail):
Cornellian,

I think the case I cited previously (Reid v. Covert, 354 U.S. 1 (1957)) answers your questions. This is a case that dealt with a conflict between a treaty (actually, an executive agreement, but the Court makes clear it would apply equally to ratified treaties) and an individual right. The treaty was held to be subject to the Constitution, in a similar way to the way all statutes are subject to the Constitution. Statutes, of course, are the "supreme law of the land" according to the supremacy clause just as are treaties, so both statutes and treaties must comply with the Constitution.

I don't think the fact it was an individual right is dispositive. If the treaty had been repugnant to some other provision of the Constitution, the principle and result would be the same. For example, the president and Senate couldn't admit Canada to the Union by a treaty. The Constitution gives that power exclusively to Congress, which, of course, means both the House and Senate, not just the Senate ratifying a treaty signed by the president.

I suppose one exception would be the Tenth Amendment. The Court held in Missouri v. Holland that the Tenth Amendment didn't bar the operation of the Migratory Bird Treaty. So that example of a treaty that trumped some kind of a collective right. But really, that is just an extension of the principle that federal law trumps state law.
11.4.2007 4:05pm
Tony Tutins (mail):
Cornellian: what I was worried about was a ruling that the UN proposal did not violate the Second Amendment because the Second Amendment did not protect an individual right to own firearms. Or that individual states were free to enact restrictions on firearms ownership every bit as strict as those in the UN proposal, if not stricter.
11.4.2007 4:25pm
e:
After skimming through most of the comments, I just want to say that I was born rural and don't see a problem with guns in responsible hands, but the idea of a "god-given 2nd Amend right" is silly. Once we've become even more urbanized, look for another amendment.

Self-defense principles in the military never gave us the right to carry a particular type of weapon. It was about using what we happened to be armed with in a proportional manner as necessary to counter the immediate threat. Personal self-defense need not only be about guns. Especially if we were able to reduce the number of non-hunting weapons which end up on the black market.
11.4.2007 8:51pm
Maureen001 (mail):
e: You think the Founding Dads thought it silly to protect against politicians from being able to rescind the rights of citizens by attributing Divine Gift to those rights so they could not be rescinded or abridged by mere mortals? You have a strange definition of "silly", dude!

Self-defense should be carried out in the most efficient and effective manner available to the defender; in almost any case, a gun is the "big stick" equalizer. What you learned in the military gives you an advantage over, say, someone like me, who would need something like a gun to defend myself from your aggression.

The desire to reduce or eliminate guns in this country is LaLaLand stuff. Have you ever heard the estimates of the numbers of the unregistered guns alone in this country? It's not going to happen. Period. Best to deal with the abuse of responsibility; that's possible.
11.4.2007 9:40pm
TDPerkins (mail):
e wrote,

After skimming through most of the comments, I just want to say that I was born rural and don't see a problem with guns in responsible hands


That would be any adult not a felon or found insane.

but the idea of a "god-given 2nd Amend right" is silly.


The idea "rights" are granted by a majority or even a supermajority is certainly more silly and found to be more dangerous to liberty and safety in history, and that is the leading competitor to "god given" idea of rights.

Come up with a better conception and let us hear about it.

Once we've become even more urbanized, look for another amendment.


Since urbanization excuses no gun laws, which have a track record of never achieving their intended purpose, I don't think so. What about urbanization prevents criminals from avoiding death at the hands of their victims?

Self-defense principles in the military never gave us the right to carry a particular type of weapon.


And if the military was the proper model for our society, you'd begin to have a point.

It was about using what we happened to be armed with in a proportional manner as necessary to counter the immediate threat.


Most military folks I know of are happy to respond with overwhelming, not proportional, force when it is available and not sited to cause unacceptable civilian casualties--and when it is likely to cause unacceptable civilian casualties, they are tasked with achieving their mission goals at increased risk to themselves.

Like I said, mentioning the military model is NOT an adequate commentary or alternative to the current civilian model of self-defense, which is to end the violent threat to yourself and others with expedition and certainty. There currently exists no alternative to this end better than a firearm.

Personal self-defense need not only be about guns.


Until some other means of self defense is as sure, as inexpensive, as handy--as effective; yes it does.

Especially if we were able to reduce the number of non-hunting weapons which end up on the black market.


The gimmes keep on coming.

In the end, sir, it's not about hunting...

...But self defense in the criminal and the political sense.

Yours, TDP, ml, msl, &pfpp
11.4.2007 10:19pm
gus:
I don't know why "self-defense" would ever be a right. If life is sacrosanct, then just because someone tries to take your life, does not mean you have a "right" to take your attacker's life. This is very basic. Government has the right to punish "attackers" to maintain social order. That is what government does--maintain order. Individuals qua individuals have no personal right to maintain social order. Hence, as an individual, when the individual's personal rights are violated, the individual does not somehow acquire the "right" to violate the rights of another in retaliation. Or in simpler terms, just because you try to kill me, does not mean that I get the "right" to try to kill you back.

To suggest otherwise, is to accept the proposition that there exist what we might call "triggers," whereby individuals are entitled to violate the rights of other individuals.

To make this point another way, just because an "attacker" chooses to violate someone's rights does not mean that, as an individual, the attacker has lost his own rights.

Of course in the real world, this debate moves entirely the wrong way with folks insisting that they have a "right" to own guns to shoot attackers. Agreed the 2nd amendment gives a right to a gun, but it should not give a right to kill attackers.

To the contrary, to the extent that courts find that the "death penalty" is disproportinate as punishment for a crime, then "death" should always be a disproportinate response to a crime. If the "perp" can't be executed for what he or she is doing, YOU should not be able to shoot the perp to protect yourself.

Of course, to be consistent, Police should be similarly constrained. If the perp can't be executed for a crime after a jury trial, the cop on the street should not be permitted to execute the perp--even if the perp is shooting at the cop.

Let's face facts, the perps will run out of bullets -- there is no situation where the cops can't wait out the criminal (even if that runs to days).
11.4.2007 10:33pm
e:
Amazing, but not surprising that people can read my words with no charity.

Regarding the urbanization point, I probably agree that guns in the hands of potential victims deter some crime and certainly allow a greater degree of force in defense. But the attitude of urbanites towards guns (and socialism) will be tough to change. More urbanites means a greater likelihood that gun control, and even a clarifying amendment will find "success." I might not support it, but would there be a problem a constitutional amendment was passed saying that the 2nd Amend does not guarantee the availability of handguns or truly automatic rifles? And then production was limited?

Regarding the idea of giving up on the idea of a society with fewer handguns because there are simply too many loose guns. Yup, I do think that's silly.

Regarding military principles being irrelevant. No, principles of self-defense on the battlefield and civil society are basic and share a common core of principles. Arms races are restrained for good policy reasons to counter a tendency towards escalation or other concerns. Not every military member carries deadly force as an option, but that does not mean that any rule of engagement impedes their right to self-defense. And no, most military members do not know deadly hand combat techniques. The problem I see here is that people are equating a right to self-defense with a right to deadly force. Self-defense simply allows action, it does not allow arming to counter any potential threat.
11.5.2007 1:23am
e:
Gus, Without going into the more contested requirement to flee in some situations, assuming someone is cornered, are you really arguing that someone should be without legal justification to prevent an attacker from murdering him?

You seem to be confusing treatment of convicts in a controlled situation and treatment of individuals posing an immediate and ongoing threat. Acting in defense of others, the police clearly don't have to wait until a maniac finishes his shooting spree to use deadly force just because a jurisdiction has no death penalty. But they are guided by a solid doctrine of the ages to use only the necessary amount and duration of force to make the threat go away. Not all situations allow us to call or rely on gov't protection. Nor should we need to. Taking this long-established right from individuals empowers criminals and concentration of gov't power.
11.5.2007 1:36am
Kazinski:
Glad to explain it to you Gus,
When you exercise a right to self defense you don't have an unfettered right to kill the perp, but you don't have to use a finely graduated proportionate response either. If an adult male attacks you with their bare hands, you don't have to respond with your fists, you can shoot them between the eyes. However if an old woman strikes you with an umbrella, you should probably apologize for what ever you did to provoke her.

An attacker basically signs a waiver when they assault someone. Same with a robber or a burglar, but not a conman.
11.5.2007 1:55am
Anonymous international lawyer:
Most of the points I wanted to make after reading the original post, the comments above and the draft of the BYU-article, have already been made by Chris Bell - whom I applaud for his willingness to respond in a civil and convicing way to some pretty superficial and unreflected comments.

If anyone cares I would like to add one substantial criticism to Professor Kopel's (didn't know he was a professor, always thought he was a gun lobbyist) attempt to rely on Grotius and other early icons of international law:

Back in the times of Grotius, international law was at all not thought to convey individual rights to individual people. Rather, international law was understood as a legal order coordinating international relations, i.e. relations between the only then-recognized subjects of internatioal law, states.

Any reference to the domestically recognized right of self-defense by Grotius thus only served to illustrates that states (not individuals) also enjoy a right of self-defense under international law. Such a right is indeed universally recognized in international law and spelled out in Article 51 of the UN Charta, which refers to it as "inherent".

It is methodically unsound and, in fact, misleading to invoke Grotius in support of the contention that international law recognizes a personal right of self-defense.

Finally, last time I checked, the U.S. Constitution didn't recognize (explicitly or implicitly) a right of self-defense. I fully understand the political motivation behind the attempt to reframe the debate about gun control into a debate about the right of self-defense. We all should acknowledge, however, that these are two separate issues that are not automatically intertwined. All domestic laws I am aware of recognize self-defense, all of the nations concerned have much stricter gun-control laws than the U.S. - and a much lower crime rate.
11.5.2007 7:28am
Kevin P. (mail):

Anonymous international lawyer:
Finally, last time I checked, the U.S. Constitution didn't recognize (explicitly or implicitly) a right of self-defense.

You should check out the Self Defense cases.


all of the nations concerned have much stricter gun-control laws than the U.S. - and a much lower crime rate.

Ah yes. The sweeping and false statement that is characteristic of the gun control advocate.
11.5.2007 9:04am
SirBillsalot (mail):
"Finally, last time I checked, the U.S. Constitution didn't recognize (explicitly or implicitly) a right of self-defense."

I think there is a pretty large self-defense penumbra eminating from the Second Amendment. Even if you subscribe to the collective rights model, there is not much point to a militia if there is no right to self-defense.

Second, laws may give recognition of self-defense in form but rights require the means to enforce them or they become merely theoretical. If the means to self-defense are banned and only available to the state, an individual right to self-defense is neutralized. This, of course, would pose a problem to gun bans if non-derogable norms of international human rights law recognized an individual right to individual self-defense. This is why the UN is keen not to recognize such an inconvenient right.
11.5.2007 9:09am
BruceM (mail) (www):
Not all self-defense involves guns. What about using fists for self defense? Or pushing someone (use of force) away who is trying to attack you? Or using a samaurai sword, baseball bat, switchblade, or stapler?

I don't see why firearm self-defense is any more special than any other form of using force to defend oneself from the impending attack of another.
11.5.2007 9:58am
Tony Tutins (mail):

Not all self-defense involves guns. What about using fists for self defense? Or pushing someone (use of force) away who is trying to attack you? Or using a samaurai sword, baseball bat, switchblade, or stapler?


Good idea. There have been break-ins in her neighborhood, so I'll tell Grandma to start learning jiu-jitsu.
11.5.2007 10:12am
SirBillsalot (mail):
BruceM: "Not all self-defense involves guns. What about using fists for self defense?"

Or as Monty Python put it, "what about point-ed sticks?" Seriously, if it makes you happier, add the word "effective" before each use of the phrase "self-defense."

Firearm self-defense is the use of deadly force. Deadly force isn't always justified. If just pushing someone away is likely to be effective, then most likely the use of deadly force isn't justified. But that isn't always going to be the case, which is why we come back to whether or not an individual has the right to turn to more effective means for situations where an elbow or fist isn't enough. For example, when your attacker is much larger than you, or is himself armed.

The use of deadly force in self-defense isn't limited to guns. It just happens that when deadly force is justified, for people of ordinary ability and strength, the most effective self-defense weapon is likely to be some kind of firearm. Swords and switchblades and even baseball bats or fists require strength and skill and require you to go hand to hand. If 93 year old granny facing a rapist in her home goes at him with an (illegal) switchblade or baseball bat, she is likely to end up raped and dead. But point a shotgun — maybe not. That's the point.

By the way, the UK today announced it is banning samurai swords:

"The sale of imitation samurai swords could be banned by the end of the year, the Home Office announced today.

Importing or hiring the weapons could also be made illegal following a string of samurai sword attacks in recent years.

Breaching the ban, which is targeted at cheap imitation samurai swords rather than the more expensive genuine collectors' items made by licensed swordsmiths in Japan, would result in up to six months in jail and a £5,000 fine." Daily Telegraph 11/5/07



Point-ed sticks will no doubt be next.
11.5.2007 10:35am
lrC (mail):
The Second Amendment particularly and explicitly reserves to the people the right to resist oppression with deadly force. The permitted arms should be whatever happen to be contemporary military small arms.

The right of self-defence against those, and other, predators (including criminals) is inherent with the right to life. The permitted means should be whatever is proportionate to the threat.

The point of bothering to mention rights to life and self-defence in any legal document should be only to remind the dim-witted and tyrannical that the rights exist and are beyond the moral authority of anyone to impede. That rights of self-defence are not mentioned (affirmed) frequently in international and domestic law is irrelevant.
11.5.2007 11:08am
pete (mail) (www):
"I don't see why firearm self-defense is any more special than any other form of using force to defend oneself from the impending attack of another."

The answer is that firearms are the great equalizer because they require little muscle, training, or expense and can be used effectively at a range against multiple targets. They allow the out numbered, out muscled, out skilled, etc. to defend themselves in a way that no other weapon does.

To go back to my own burglary story: my retired neighbor was no match physically to the two teenage burglars who broke into my house, one of whom at least had a knife. But when he went to get his gun the burglars ran away because he now had the advantage.
11.5.2007 11:17am
whit:
"I don't know why "self-defense" would ever be a right. If life is sacrosanct, then just because someone tries to take your life, does not mean you have a "right" to take your attacker's life. "

you are missing the point. the right (and i love the way you use scare quotes on "self-defense"... how telling) is to defend yourself.

the fact that death may result from self-defense is a sad effect of some application of the right to self-defense. it's not the purpose. you don't have the "right to take life". you have the right to self-defense.

if we magically invent a device that is equally effective at self-defense as a gun, but is non-lethal, then that will be the preferred method for self-defense. no such device is available to the public
11.5.2007 11:54am
Kazinski:
Anonymous international lawyer:

All domestic laws I am aware of recognize self-defense, all of the nations concerned have much stricter gun-control laws than the U.S. - and a much lower crime rate.

That assertion is strictly laughable.

But it misses the point entirely, US citizens don't have to justify their need for firearms, or even assert a need. I own a firearm, I have no need at all for it, I just like to have it. It is my right. Arguing that I don't need it is like telling me I don't need a car. So? I want two cars, so I have them.
11.5.2007 12:12pm
Tony Tutins (mail):
Back in the times of Grotius, international law was at all not thought to convey individual rights to individual people.

Grotius's argument in favor of just wars start with the natural rights of individuals. From reading Grotius's Le droit de la guerre et de la paix. 1724., available online, Book 2, p. 208, Section III, para 2, if our person is currently under attack, such that our life is unmistakably at risk, (a)it is then allowed to meet force with force, to the point of killing the one who puts us in a similar danger. We have already used this argument in the most general case to prove that private wars can be just.

3. It's necessary to note here that the right of self defense comes directly and immediately from the need itself of our self-preservation, which Nature recommenXs to every one, and not by the injustice or the crime of the Aggressor. (b) Thus, even if the Aggressor were innocent, as, for example, if it were a soldier who, (2) bore arms in good faith, or if he took me for someone else, or if he was out of his senses, (3) or in a reverie, as we have read has occurred to various people, we none the less have the right of self-defense. For it's sufficient that under no circumstances are we obligated to suffer when we are menaced by such a man, and we
are no more obligated to spare him than if the danger had come from an Animal belonging to someone else.
11.5.2007 12:21pm
Tony Tutins (mail):
I meant to give the link to the French translation of Grotius's Latin original, but I was trying to work around the prohibited word in my post. The first two lines of my post were a quote from a previous post.
11.5.2007 12:25pm