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Can Lethal Self-Defense, Even Against Threats of Death, Serious Bodily Injury, Rape, and Kidnapping, Be Made a Crime?

The Seventh Circuit's Second Amendment non-incorporation decision so suggests:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as far-fetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868.

Note that the court's argument isn't simply that lethal self-defense could be constitutionally limited to situations where it's genuinely necessary to protect against (say) death, serious injury, rape, or kidnapping. Rather, the argument must be that lethal self-defense could be constitutionally barred altogether. Otherwise the court's argument that "That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens" wouldn't work: The argument rests on the assumption that guns would be unusable to "law-abiding citizens" because "[lethal] self-defense would itself be a crime."

Likewise, the argument is not only that certain tools for lethal self-defense could be barred. That's the conclusion that the panel is trying to reach by arguing (I repeat) that lethal self-defense could itself be made a crime. (I read "self-defense" as meaning "lethal self-defense" in context.)

Now not all bad laws, even evil laws, are unconstitutional laws. And the lower court cases (all of them pre-Heller, except Brett, N. v. Community Unit School Dist. No. 303, 2009 WL 424546 (N.D. Ill. 2009)) are indeed split on whether there is a constitutional right to self-defense. But it seems to me that the case for such a right — including a right of lethal self-defense when necessary to prevent death, serious bodily injury, rape, and kidnapping — is very strong, even under the narrowest accepted test for recognizing constitutional rights (the Glucksberg test, from the decision that rejected a claimed right to assisted suicide). For a past on-blog debate on the subject, see this post chain.

Michael Kessler:
Well, if the Glucksberg (et. al.) "Nation's history and traditions" test can include the Lockean-Jeffersonian-Madisonian notion of an inalienable right to self-preservation, as well as the widely-held premise among "the founders" that their very right of self-preservation was threatened by arbitrary and tyrannical acts of the King (a significant premise for the revolution), then I can't see how the right to self-defense can be alienated and regulated away.

Thanks for bringing this to our attention.
6.2.2009 1:40pm
cboldt (mail):
-- I can't see how the right to self-defense can be alienated and regulated away. --
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By the use of sleight of hand, and if that doesn't work, the use of overwhelming government force against those who practice self-defense.
6.2.2009 1:48pm
Nunzio:
Easterbrook loves to make stuff up just like Posner. Don't take either of them seriously.
6.2.2009 2:03pm
Jon Roland (mail) (www):
By original understanding, no. Nor against offenses against other persons. Or even to defend against robbery or theft, trespass, or other lesser offenses.

One key point: self-defense is more properly regarded as defense of a member of the community (who happens to be oneself) -- a militia duty, not just a right. One issues a call-up, responds to one's own call-up, and enforces the law.

We have some distance to go to get back to original understanding.
6.2.2009 2:08pm
Jon Roland (mail) (www):
It xseems clear that Easterbrook and the others are deliberately setting up this split hoping the SC will take it and incorporate.
6.2.2009 2:09pm
D.R.M.:
Even Hobbes recognized self-defense as a natural right that couldn't be surrendered. How extreme do you have to be to think Leviathan didn't go far enough in ceding power to the sovereign?
6.2.2009 2:22pm
ruuffles (mail) (www):

It xseems clear that Easterbrook and the others are deliberately setting up this split hoping the SC will take it and incorporate.

Aren't they a bit late to the game? Since the 9th and 2nd have split, it would still be 2-1 either way.
6.2.2009 2:26pm
William Woody (mail) (www):
Since I can also kill someone with a baseball bat, I've always wondered why a prohibition against lethal self-defense would automatically lead to a banning of handguns but not a banning of baseball bats, since both can be used for other purposes.

In other words, I've always wondered why it is that we conflate the tools used to achieve a result with the result itself--and on outlawing the result reached across and started banning the tools used to reach that result. In California many years ago similar thinking was almost used to force software developers to be licensed civil engineers before writing software: software developers wrote calculator software used by civil engineers, and so the theory goes, were indirect parties to creating work product that required a civil engineering license.

Such fuzzy thinking irritates me because this conflating the tools with the results leads to some really bad law, in my uneducated opinion.
6.2.2009 2:35pm
PersonFromPorlock:
The right of self-defense is right there in the Constitution, in the Ninth Amendment. The court's argument is merely silly.
6.2.2009 2:46pm
zippypinhead:
Or to spin it slightly differently, here's a fun headline: "Federal Judges Suggest States Can Criminalize Self-Defense Against Attacks By Rapists and Murderers." Followed the following day by this equally-fun headline: "Outraged Senators Call for Impeachment Of Radical Chicago Jurists As Thousands Of Women's Rights Advocates Picket Federal Courthouse."

But seriously, the first time I read the panel opinion in NRA v. Chicago, I was a bit perplexed to see that the opinion blathered on at great length in dicta, starting at the first full paragraph on p.5 of the slip opinion, to suggest a number of ways in which the Supreme Court might decide that the Second Amendment should NOT be incorporated. I took this as a fairly transparent direct attack on Nordyke's reasoning on the merits.

Then I read the second part of the opinion again - and realized that the arguments were, by and large, so preposterous and weak that it was almost as though somebody was slyly setting them up as straw men to knock down. Then I remembered how vehemently opposed Judge Posner, at least, has been to the entire concept of a right to keep and bear arms in previous writings, and decided that, no, I was right the first time -- but if the best that brilliant minds like Easterbrook and Posner can come up with is the unpersuasive dreck in the second half of NRA v. Chicago, this probably bodes well for proponents of incorporation if/when SCOTUS takes up the issue.
6.2.2009 2:46pm
Mikee (mail):
Such legislation can be passed, I suppose, but there are many parts of Chicago (and elsewhere) I would not recommend for personally testing ridiculous laws against self defense.
6.2.2009 3:00pm
martinned (mail) (www):

The right of self-defense is right there in the Constitution, in the Ninth Amendment. The court's argument is merely silly.

Let's all take a moment to consider how true this is. I've objected to Heller before on the grounds that it explains away the first half of the amendment, but I think it is undisputed that the right to act in self-defence is protected by the 9th amendment, if no other.

For the record, lest I say something later that I will regret, I have posed the question just last month whether it might not be correct to say that any law, constitution or treaty that purports to outlaw self-defence or a narrow version of the necessity defence is void for being repugnant to natural law, etc. (The question came up in an OJ threat about necessity and the Convention Against Torture.) I quoted Lord Coke in Dr. Bonham's case to argue that such a law would be "against common right and reason, or repugnant, or impossible to be performed".
6.2.2009 3:07pm
SPO:
detached reflection cannot be demanded in the presence of an uplifted knife
6.2.2009 3:13pm
anomdebus (mail):
I don't see how barring lethal self defense necessarily forbids the possession or use of fire arms in non-lethal self defense. If you just brandish the weapon or "shoot across the bow", then the weapon is useful without even coming close to lethal force. Note, I omitted shooting at the extremities for this reason.
6.2.2009 3:17pm
anomdebus (mail):
SPO,
hmm, shouldn't your comment be after mine? :P
6.2.2009 3:21pm
Melancton Smith:
"...We hold these truths to be self-evident..."

Hah hah hah. Did they ever over-estimate their descendents...
6.2.2009 3:25pm
ShelbyC:
No govt can legitimatly outlaw self-defense. When they try, it's about time to start defending ourselves against that governemnt.

I mean, if somebody's going to kill me, I'm going to let them, out of fear of prosecution?

I mean, we're getting into a really strained concept of fundemental rights when we conclude that the constitution protects sodomy but doesn't protect self-defense.
6.2.2009 4:07pm
cboldt (mail):
-- if somebody's going to kill me, I'm going to let them, out of fear of prosecution? --
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Probably not. But your temporary lapse will not keep you out of prison.
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-- I mean, we're getting into a really strained concept of fundemental rights when we conclude that the constitution protects sodomy but doesn't protect self-defense. --
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If you persist in that sort of heresy, you will found in need of an empathy adjustment and ordered to attend counseling.
6.2.2009 4:24pm
Dan Hamilton:
If anything like this ever becomes law I will have to buy that house with acreage and a backhoe (I'm to old and lazy to dig).
6.2.2009 4:34pm
Laura Victoria (mail):
Anomdebus. Well, assume the law includes a prohibition against threatening the use of deadly force, doesn't that then prohibit brandishing a gun--brandishing prohibitions are replete in the criminal law.
6.2.2009 4:39pm
anomdebus (mail):
Laura,
We could of course continue down the road where we suppose the law prohibit more and more things, but they specifically addressed the use of deadly force.
Btw, I would be surprised if there were brandishing prohibitions in one's own home as opposed to public brandishing.
6.2.2009 4:57pm
Sarcastro (www):
Penumbras!
6.2.2009 5:00pm
cboldt (mail):
-- I would be surprised if there were brandishing prohibitions in one's own home as opposed to public brandishing. --
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Domestic threatening.
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Dan Hamilton: The "and shovel" part is useless without the "shut up" preface.
6.2.2009 5:11pm
Kirk:
I've objected to Heller before on the grounds that it explains away the first half of the amendment
OK, except for the fact that it doesn't...
6.2.2009 5:14pm
cboldt (mail):
-- I think it is undisputed that the right to act in self-defence is protected by the 9th amendment --
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Playing devil's advocate, I'll dispute that you'll find any right to self defense in the Constitution. In fact, the Constitution stands for the opposite proposition. See the preamble, "insure domestic Tranquility, provide for the common defence, promote the general Welfare," which are 100% collective purposes. The entire function of the constitution is to diminish individual rights as to use of violence, in favor of the reaction of a thoughtful and deliberative group.
6.2.2009 5:27pm
Butters:
@anomdebus,

Just as a point of interest, in Commonwealth v. Alexander, 260 Va. 238 (2000), the Virginia Supreme Court held that it was unlawful to brandish a firearm in defense of property. The court based its reasoning on the rule that one "shall not, except in extreme cases, endanger human life or do great bodily harm" in defense of property. In other words, the court seems to have concluded that, as far as the availability of defense of property as a criminal defense goes, there's no difference between merely threatening a guy with a firearm, and blowing his head off. (Which is not to say that the two acts will result in the same charges, or penalty.) On that reasoning, one could argue that there's defensive application of firearms that does not amount to use of deadly force. But see State v. Williams, 433 A.2d 765 (Me. 1981).
6.2.2009 5:42pm
Butters:
Damn italics.
6.2.2009 5:44pm
martinned (mail) (www):

The court based its reasoning on the rule that one "shall not, except in extreme cases, endanger human life or do great bodily harm" in defense of property.

That seems reasonaable, but in my experience few Americans tend to agree.
6.2.2009 5:59pm
Glen Alexander (mail):
I see the right to self-defense quickly becoming the underlying core issue now that Heller has reinvigorated the individual basis of the Second Amendment. Rather than arguing linguistics, history, or methods of legal interpretation, we've finally reached the point where this core question can't be ignored — and, to no one's surprise, there are indeed people (including appellate judges) who believe that human beings have no inalienable right to self-preservation and self-defense. How and where that right is or isn't enumerated in our laws is a subsidiary issue.

Roe acknowledged that there is a right to life in the Equal Protection Clause. Coupled with the text of the Second Amendment, it's hard for me to see how anyone could argue against a pre-existing and fundamental human right to self-defense. I wonder how many people who are ardent supporters of abortion also believe in a fundamental right to self-defense?

As to whether "evaluation of which weapons are appropriate for use in self-defense" is or isn't "in the people's hands", here Posner shows again how detached he is from the real world. Of course there's some place in the continuum between a baseball bat and a hand grenade below which the use (and possession) is clearly a protected fundamental right and above which it would be subject to legislative discretion.

Poser seems to see his work on the Seventh Circuit as nothing more than an intellectual parlor game. On this point, I'd almost prefer the "empathy", "life experiences" and "pragmatism" that Judge Sotomayor will supposedly bring the Supreme Court.
6.2.2009 5:59pm
anomdebus (mail):
Well, color me surprised then.

Btw, I was taking brandishing to mean the minimal case, ie lifting up shirt to show you have a gun, and not waving it around as if you were about to use it.
6.2.2009 6:03pm
K:
Suits me. Begin with the police. Disarm them.

Instead, officers should provide instructions to suspects. Somewhat like the Miranda warning.

"You have a duty to not resist arrest or flee. If I am busy at the moment - perhaps attending to the people you have shot - please proceed to a police station and explain the matter to the officer on duty. You will be formally arrested there."
6.2.2009 6:06pm
LarryA (mail) (www):
Or to spin it slightly differently, here's a fun headline: "Federal Judges Suggest States Can Criminalize Self-Defense Against Attacks By Rapists and Murderers." Followed the following day by this equally-fun headline: "Outraged Senators Call for Impeachment Of Radical Chicago Jurists As Thousands Of Women's Rights Advocates Picket Federal Courthouse."
Except that many "Women's Rights Activists" would happily cheer a complete ban on firearms as a symbol of male oppression, while telling victims to depend on professional law enforcement for protection.
I don't see how barring lethal self defense necessarily forbids the possession or use of fire arms in non-lethal self defense. If you just brandish the weapon or "shoot across the bow", then the weapon is useful without even coming close to lethal force. Note, I omitted shooting at the extremities for this reason.
Except that a shot across the bow is useless as a warning if you're prohibited from carrying out the threat it conveys. Self-defense is an essential element in gun rights, as it's the only argument that balances the harm of criminal misuse.
I mean, if somebody's going to kill me, I'm going to let them, out of fear of prosecution?
That's the idea. "If a criminal wants your wallet, give him your wallet, otherwise someone might get hurt" eventually escalates into "If he wants to kill you let him kill you, otherwise someone might get hurt." See: England.
If anything like this ever becomes law I will have to buy that house with acreage and a backhoe (I'm to old and lazy to dig).
Or a house by a river.
I would be surprised if there were brandishing prohibitions in one's own home as opposed to public brandishing.
Threatening someone with deadly force is pretty much illegal anywhere, unless you can justify the action as self-defense.
Btw, I was taking brandishing to mean the minimal case, ie lifting up shirt to show you have a gun, and not waving it around as if you were about to use it.
I doubt many state statutory laws are detailed enough to delineate a difference. Texas' isn't. The illegality lies in the threat of harm, not in the manner the firearm is presented.

Suppose I pull out a gun and say, "Look at my new Smith &Wesson." I then (at a range) proceed to fire at a target. Not illegal. However, if I say, "I have a gun and I'm going to shoot you," that would be an illegal threat, even if I was unarmed.
Instead, officers should provide instructions to suspects. Somewhat like the Miranda warning.
In England today, those instructions are called ASBOs. (AntiSocial Behaviour Orders)
6.2.2009 6:42pm
martinned (mail) (www):
@LarryA: Do you even know what an ASBO is? Far be it for me to say they are particularly useful, but at the same time they allow the governments, with approval of the courts, to impose all sorts of instructions that would be - let's say - constitutionally tricky in the US.
6.2.2009 6:53pm
cboldt (mail):
-- Far be it for me to say [ABSOs] are particularly useful, but at the same time they allow the governments, with approval of the courts, to impose all sorts of instructions that would be - let's say - constitutionally tricky in the US. --
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Just like in the US! The constitutionally tricky part, that is. Tricky != forbidden, or unconstitutional. It just means tricky. US Courts excel at promulgating "tricky" stuff.
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Here they go by the term "restraining order," and any pretext is sufficient to find that the government has the superior interest.
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The legislatures and courts are plenty willing to run the country. I'll let 'em have at it; the results will speak for themselves.
6.2.2009 7:12pm
Butters:
martinned,

I think over the past couple centuries our cultures have developed different standards for what constitute "extreme cases." But I agree that many (probably not most) of my fellow Americans seem to hold the view that their chattels are worth more than the life of a criminal. I don't agree, though I favor very liberal rules on use of force in response to unprovoked violence -- or even in response to criminal acts that merely suggest the perpetrator is willing use violence. I'm quite happy having criminals bear the risk of mistake in those circumstances.
6.2.2009 7:31pm
Melancton Smith:
Martinned wrote:


The court based its reasoning on the rule that one "shall not, except in extreme cases, endanger human life or do great bodily harm" in defense of property.


That seems reasonaable, but in my experience few Americans tend to agree.


Whatever Americans agree on, IL law is quite clear. You can use deadly force to prevent a forcible felony.


(720 ILCS 5/7-1) (from Ch. 38, par. 7-1)
Sec. 7-1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
( In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93-832, eff. 7-28-04.)
6.2.2009 7:32pm
Fub:
Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens.
Suppose a state were to decide that urging people to vote for some candidate was fighting words -- in other words that to prevent disorder and fights, political speech should be left to the state instead of engaged by individuals. That decision would imply that no one is entitled to political speech, because political speech would be unlawful, and the First Amendment protects only the interests of law-abiding citizens.

Bootstrapping with ersatz logic in hypotheticals is just silly.
6.2.2009 8:01pm
zippypinhead:
Just as a point of interest, in Commonwealth v. Alexander, 260 Va. 238 (2000), the Virginia Supreme Court held that it was unlawful to brandish a firearm in defense of property. The court based its reasoning on the rule that one "shall not, except in extreme cases, endanger human life or do great bodily harm" in defense of property.
Moral of the story: Don't point your rifle at the repo man after he's hooked up your (former) car in the driveway.

This case is actually unremarkable on its facts. It holds that one cannot credibly threaten to use deadly force, unless the actual use of deadly force is justified under the circumstances. I believe this is the majority rule in the United States, right? As a complicating factor, the defendant had no lawful right to the personal property he was purporting to defend, which legally was the lienholder's, and the repo man was the lienholder's agent. Although there was some evidence the the repo man was belligerent and threatening, there apparently wasn't sufficient evidence for the jury to find that the defendant was in reasonable fear such that resort to threat of deadly force was warranted (the jury was given an instruction on this point). And since the jury was in rural Rockbridge County in west-central Virginia (as opposed to, say, the People's Republik of Arlington, NoVa), I suspect the jurors weren't terribly troubled by the concept of a homeowner with a rifle in general.

In Virginia, although there's no codified castle doctrine, state common law clearly authorizes use of deadly force in self-defense or defense of others in one's home and curtilage. If a car thief or even the repo man had either attacked the defendant physically or placed the defendant in reasonable fear of death or serious bodily injury (e.g., by brandishing his own firearm), the defendant lawfully could have threatened or even used deadly force.

Which does bring up an interesting question - if one assumes incorporation, does the Second Amendment somehow have greater weight in a state that recognizes the right to use deadly force in self-defense? I think not - particularly since D.C., where the Heller case was brought, has nothing like a castle doctrine rule. But the Heller majority had no difficulty assuming there is some right to use deadly force -- specifically with a handgun -- in self-defense in the home. Meaning Judges Easterbrook, Posner and Bauer may be off on a wee bit of a lark and frolic on this point?
6.2.2009 8:37pm
Mark N. (www):
@Glen Alexander: It would be a weird opinion indeed to uphold a right to lethal self defense by citing Roe as controlling precedent. I'm finding it difficult to imagine a set of 5 Supreme Court justices who would sign on to that set of propositions.
6.2.2009 9:46pm
James K.:
I recently moved to Australia. Guns were widely outlawed here many years ago (although permits for farmers, etc. are allowed). Even so, what has amazed me is that Australia also restricts self-defense in the home! I'm not sure I would have moved here if I had know that!

A radio program on the ABC interviewed a former Australian SAS soldier who was prosecuted for "causing grievous injury" to two individuals who were wandering about his home at night with shotguns. He hit one in the face with a chair and broke the other one's wrist (thus the grievous injury).

As it turns out, he needed to hire a psychologist to testify that with his military training he was programmed to defend himself and did the least amount of damage possible with his training.

Until I read this case summary, I would have thought in America he would have received a medal and started a business on self-defense. So the answer is yes, some civilized nations do take away most of your rights to self-defense. I suppose it could happen in America someday, but I don't think we're there yet.
6.2.2009 10:05pm
martinned (mail) (www):

A radio program on the ABC interviewed a former Australian SAS soldier who was prosecuted for "causing grievous injury" to two individuals who were wandering about his home at night with shotguns. He hit one in the face with a chair and broke the other one's wrist (thus the grievous injury).

It's the shotguns that make that story sound implausible to me. Substitute knives, or even take them out of the story altogether, and the story makes perfect sense.
6.2.2009 10:17pm
anomdebus (mail):
LarryA,
I don't think we disagree much and yet I think you misunderstand me.

a shot across the bow is useless as a warning if you're prohibited from carrying out the threat it conveys

Lets say you are the criminal, someone just shot and missed you by a foot or two. Someone afraid to shoot probably won't be able to take that shot, so you are proving that you can pull the trigger if necessary. Are you going to bet your life that the shooter values his life more than potentially spending it in jail? Btw, I consider this an extreme case since you would be damaging your own property.
In any case, my point was even with the judges assumptions (ie a bad case scenario), it doesn't convey what they think it does.

A difference currently between the US and Britain is that we have yet to be substantially unarmed. Maybe some people in this country wants to take us there, but we are not there yet. Keep up the fight.

Threatening someone with deadly force is pretty much illegal anywhere

I can't tell if you are following me here, even when you quote my clarifying quote. Probably about the strongest quote I am suggesting would be "I have a gun and am not afraid to use it" and either "Leave my premises" or "surrender yourself". Though, I don't think it necessarily need go that far.

This discussion is apparently about if there is any use of a gun for self defense where there is a specific prohibition against lethal self defense.
6.2.2009 10:37pm
cboldt (mail):
-- This discussion is apparently about if there is any use of a gun for self defense where there is a specific prohibition against lethal self defense. --
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As a matter of law, that answer will come down "no." See UK and Australia. The arguments in favor of guns are fun to read, but the powers that be will laugh in your face as they take your guns. Ironically, they will be using guns to enforce their taking. But then, that's what makes them "powers" and you not.
6.3.2009 6:45am
James K.:
A radio program on the ABC interviewed a former Australian SAS soldier who was prosecuted for "causing grievous injury" to two individuals who were wandering about his home at night with shotguns. He hit one in the face with a chair and broke the other one's wrist (thus the grievous injury).


Martinned, just going from my memory I'm pretty sure I had it right. No way to verify it as it was a local talk show host. But I understand where you're coming from. Guns are relatively rare and my wife says that they are only used by bikies, gun runners and organized gangs. I am dubious of that, but she has spent her life here.

The SAS is similar to our Army Rangers or Green Berets. Wiki says: "The SASR currently has two primary roles, reconnaissance and counter-terrorism. They also are responsible for surgical direct-action missions, while the 4th Battalion, Royal Australian Regiment(Commando) conducts large-scale raids."

When I repeated the story to Aussies, they told me that the burglars were lucky to get out alive. So I find it relatively believable, but verification would be better.
6.3.2009 10:59am
Lucky Corny:
I mean, we're getting into a really strained concept of fundemental rights when we conclude that the constitution protects sodomy but doesn't protect self-defense.

Well, I guess that if someone threatens you with Death, Serious Bodily Injury, Rape, and Kidnapping, you could still defend yourself by sodomizing them.
6.3.2009 1:07pm
ohwilleke:
The 7th Circuit has a point.

In a similar vein, British law entirely rejects the necessity defense. So, while in a U.S. court, the argument that the starving people on the lifeboat had no choice to eat their fellow passenger the cabin boy to stay alive could win acquittal from criminal charges that they murdered the cabin boy; in a British court, this would simply be a ground to argue for an exercise of prosecutorial discretion, or for a lenient sentence following a conviction.

The U.S. likewise does not allow deeply held beliefs to constitute a defense to acts of civil disobedience, and has rarely ruled in favor of women making a delayed self-defense argument when killing abusive husbands whom they are incapable of dispatching directly.
6.3.2009 3:11pm
David Schwartz (mail):
In a similar vein, British law entirely rejects the necessity defense. So, while in a U.S. court, the argument that the starving people on the lifeboat had no choice to eat their fellow passenger the cabin boy to stay alive could win acquittal from criminal charges that they murdered the cabin boy; in a British court, this would simply be a ground to argue for an exercise of prosecutorial discretion, or for a lenient sentence following a conviction.
That's pretty boneheaded law-making as it results in horribly bad outcomes. For example: You know your car has brake problems, but you haven't had the money to get them fixed. Your brakes fail and your car is heading towards a large group of school children. Your only other option is to swerve into a fruit stand, manned by a farmer.

With a necessity defense, you get the best legal outcome by serving and hitting the farmer. You have a necessity defense to charges of murder or voluntary manslaughter.

Without it, you had better hit the school children. At worse, you might be charged with involuntary manslaughter.
6.4.2009 11:56am
ohwilleke:
@David Schwartz

In the example you give, the right choice, which the British law would encourage, is not driving your car at all. Without a necessity defense, if you drive your car you must choose between mutiple counts of manslaughter or one, but are still facing criminal punishment.

Why should you get off the hook when your mismanagement of brake repair kills someone?

Honestly, your example sounds more like a transferred intent case (your negligence putting X in peril of harm ends up harming Y instead), than it does like a true negligence case.
6.4.2009 12:14pm
DennisN (mail):
ohwilleke:


In the example you give, the right choice, which the British law would encourage, is not driving your car at all.


Let's use the same example but remove the situation where the driver knew there was a defect. His brakes simply fail. He has the option of doing nothing and killing several school children in an accident, or steering away from the children and murdering the fruit stand owner.

It still seems like bad law.
6.4.2009 2:07pm
David Schwartz (mail):
ohwilleke: A necessity defense doesn't change his liability for driving his car with bad brakes. Nobody's going to foresee this choice and let that affect their decision to drive or not. The issue is what a person does when they're in such a situation.

Perhaps my example is not ideal. Let's try another example that's much more generic and much more real. You have two choices:

1) Do nothing and let something truly awful happen for which you bear no criminal responsibility.

2) Break a law and stop that truly awful thing from happening.

Without a defense of necessity, 1 can look much smarter.
6.4.2009 6:48pm
Michael Ejercito (mail) (www):
If it is made a crime, the number of police officers killed trying to enforce such a law in the first week would exceed the number of troops killed in Operation Iraqi Freedom since 2003.


Except that many "Women's Rights Activists" would happily cheer a complete ban on firearms as a symbol of male oppression, while telling victims to depend on professional law enforcement for protection.

why would they cheer symbols of male oppression like a complete ban on firearms.

should women depend on Tony Abbate to protect them?

"If a criminal wants your wallet, give him your wallet, otherwise someone might get hurt"

I wonder if this applies to vaginas.

Should we tell girls and women, "If a rapist wants to use your vagina, let him use it, otherwise someone might get hurt."
6.4.2009 9:27pm

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