Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.
Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, State courts versus Federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.
In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court.
Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the Constitution except in extremely exceptional circumstances. That would be that the court had no precedent.
Courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:
(1) cases where the foreign jurisdiction's law is the subject of the case, or
(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.
It is interesting that Scalia has been a vocal opponent of the practice of using foreign law sources as precedent. I guess he does whatever justifies his conclusion. Even if that means an incorrect application of the law, his supposed beliefs on judicial interpretation, or whatever else can be used to make a justification for his conclusion.
Was he trained by Jesuits?
The problem is that if one chooses to use a foreign source to enlighten a legal decision, then one must also see how the other jurisdiction has applied this source.
Where I am going with this is that I believe that the use of Blackstone implies that there is no relevant precedent in the US jurisdiction that will illuminate our understanding of the Second Amendment. This is, of course, wrong, but it is the assumption that Scalia takes.
You see there are articles out there which say that the holding would have been different if Scalia properly gave deference to Blackstone's method of legal interpretation. Especially since Blackstone knews about these forms of precedent and would have said that US v Miller was binding precedent.
But, Scalia is ignorant of the binding authority of prior precedent thus believing that there is no Second Amendment jurisprudence whatsoever.
Taking this as his point of view, he has chosen the English Bill of Rights and Blackstone as persuasive authority.
But, he shouldn't have limited himself there. He should have seen how other Common Law jurisdictions have applied the relevant text and the law of self-defence. That is the proper method for using persuasive authority: see how have other courts applied the law in question.
I mean, aren't British, Canadian, Australian, New Zealand and so forth Courts familiar with their law?
The problem is that Scalia glommed onto a phrase, a concept, but again shows his ignorance. He doesn't care what the other jurisdictions do with the law, he wants to justify his own untenable position.
The problem is that this also flies in his face as anyone familiar with firearms laws in other Common law jurisdictions knows. There is no right to a firearm.
Likewise, self-defence: Self-defence in English law is a complete defence to all levels of assault and can't be used to mitigate liability, say, from murder to manslaughter where a soldier or police officer acting in the course of his duty uses a greater degree of force than necessary for self-defence (compare the situation in some of the Australian states in Self-defence). Hence, self-defence is distinguishable from provocation which only applies to mitigate what would otherwise have been murder to manslaughter (i.e. provocation is not a complete defence).
Because of the completeness of the defence, Self-defence is interpreted in a relatively conservative way to avoid creating too generous a standard of justification. The more forgiving a defence, the greater the incentive for a cynical defendant to exploit it when planning the use of violence or in explaining matters after the event. Thus, although the jury in self-defence cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law principle is stated in Beckford v R (1988) 1 AC 130:
"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."
Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, on appeal to the Privy Council in 1971:
"The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."
How does that work in practise?
Tony Martin, a middle-aged farmer, was awakened one night by the sounds of burglars breaking into his isolated farmhouse in Norfolk, England. Fearing for his life, because he lived alone on his remote farm more than 30 minutes away from the nearest police station, Mr. Martin relied upon his shotgun for his safety. He fired on the burglars, killing one, and wounding a second.
Doesn't that Sound like a clear case of self-defence?
Sorry, but Tony Martin was sentenced to life in a British prison. On appeal, his sentence was later reduced to five years in prison. The government is so set against citizens using firearms to defend themselves that now it is fighting Martin’s early release from prison. Even though he’s been a model prisoner, government lawyers claim he represents a “threat to society.” Why? Because he refuses to admit he did anything wrong in defending his life and his property. Believe it or not, the government even argues burglars need to be protected from the people they attempt to rob.
The government is not completely without a heart, however. The wounded robber was granted £5,000 to assist him in suing Martin for damages. The robber, who has multiple convictions and has never held a steady job, claims that his injuries keep him from working.
Not an aberation: there is also Padraig Nally in Ireland.
Using examples such as those, Scalia should have found that not only was DC's law Constitutional--it didn't go far enough.
