Munir Hussain

This is the BBC News Story on Munir Hussain from the 6 O'Clock News 21-12-09. Actually, the Beeb has a couple of good pieces on this subject with clips that play outside the UK here and here



(finally the effing thing has been posted. It's taken half a day to do so. Shit, only one second posted the first time.Half the audio came through in the second go. I hope three's a charm! Nope, had to do it through youtube)

Tuesday's Guardian also has an editorial on this case. This case has become a conservative cause célèbre. Except when push comes to shove, the Conservatives aren't around to vote on the issue. The last time this came to a vote (2005) Chris Grayling and other MPs who "supported householders" were absent (see clip above).

Also, The fact that Hussain's sentence was reduced by half because of the self-defence mitigation seems to be lost in this discourse. Hussain could have been sentenced to five years, but instead received a 30 month sentence (2 1/2 years). Additionally, Hussein precluded the trial of the man he attacked by beating the person and giving him brain damage: it doesn't make much sense to try someone who does not understand what is going on (i.e., diminshed capacity).

Also, the Spectator has an article on this topic as well: The politics of self-defence.

This was the Times' take on the subject:

But the court of public opinion should reflect on the crucial distinction betweeen sympathy and legality. It is not hard to understand why Hussain, after watching burglars ransack his house and tie down his family at knife point, should have responded with violence of his own. But an eye for an eye is not the law — and with good reason. Victims of burglaries do not have the right to assume the role of judge and jury, still less an avenging vigilante.

The argument “Would you have done the same?” merits the simple answer: “If so, it would have been right that I should have been punished under the law for having done so.” One facet of a civilised society is that justice is meted out by juries and judges, not by victims at the scene of the crime.

Pandering to public opinion after the sentencing of Hussain might appeal to the electorate’s baser instincts. But it will not improve the criminal justice system. Sympathy for those who take justice into their own hands is one thing; the law is quite another. Politicians should understand the difference.

And while we are at it, the Times also has an article about the proposed “grossly disproportionate” standard.

Meanwhile, in the US, a police officer pulls a gun on snowball throwers. Funny, but people bitched when British soldiers did the same thing in Boston. Figure that one out for yourselves if you're so bloody smart.

What a bunch of fucking hypocrites!

Too soon oldt und too late schmart

Mike W. said...

If I see some nutjob holding you down and repeatedly stabbing you I can legally draw and fire my firarm to stop the attack.

Well, I'd prefer that you knew first aid in that situation since it would be far more helpful than you shooting him.

Boy, I missed how incorrect that answer was. And this asshole had the gall to say I didn't know what I was talking about.

He would only have the legal right to assist me if I had the right of self-defence.

To put this in context, I have just shot someone who was robbing me. 45limpdick walks into the situation and shoots me. He would be liable since I had just shot an aggressor.

FatWhiteMan said...

Of course then Laci prefers once-great Britain where they will throw the victim in jail and let the criminals run free

Hmm, maybe if the British Tax collectors the soldiers at the Boston Massacre, or the people who owned the tea ships had used deadly force.

Britain will be great long after the USA has become a footnote in history.

Also, FWM mentions that self-defence is a justification. It is a defence to the charges, it is not a get out of jail free card. If the use of self-defence is improper one can still have liability, especially if one uses deadly force. Also, this is a criminal defence, not a civil one. You can still be civilly liable for improper use of deadly force.

To be quite honest, I wish these people would keep their guns to themselves.

FWM cited the case of Munir Hussein who used excessive force in "defending his home from an intruder". Well, not really, they chased the guys down the street after the attack. The Judge in this case commented that:

“If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course, then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse.”

Yes, I do prefer the rule of law to the vigilantism that the gun cretins advocate.

NOTE: I didn't originally catch that Muni Hussein had chased the perps down the street and then wailed on them. That DOES put the incident in a whole different light.

One cannot let defence become offence by using too much force or by attacking after the threat is gone.

As for cops v. civilians, Cops have a couple of things that civilians don't (1) training and (2) protection from liability. A cop is slightly less likely to get into trouble if they make a mistake in judgement (e.g., shooting someone by mistake). A Civilian will have to deal with the civil and criminal liability of their actions.

I know that the mantra is "I don't dial 911". On the other hand, you cover your arse if you do dial it to let them know something has, or is happening.

To be quite honest, prevention is a whole lot better than shooting someone: especailly if you are going to end up in court (criminal or civil).

Dealing with the gun cretins on self-defence

at MikeB's

45limpdick (MikeW) had the nerve to tell me I was wrong when I said "legally you can only defend yourself and your property." Sorry, I am correct.

The general common law principle regarding self-defence 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."

The further one moves away from oneself, the less one can claim a right of self-defence. That would seem obvious since the right is "self-defence" not a "right to defend others". Of course, someone like 45limpdick (MikeW)gets his information from the Internet and doesn't check it with a lawyer to make sure it's accurate.

The right to defense of others turns largely on the reasonableness of the belief that the victim deserved assistance. A minority of jurisdictions require that the rescuer be a member of the victim’s family, or the victim’s superior or employee. Similarly, a minority of jurisdictions require that the rescuer’s belief be correct, reasoning that the rescuer ‘merely steps into the victim’s shoes’, while the majority requires only that it be reasonable. Pennsylvania law imposes no such restrictions. It does, however, require the additional showing that the rescuer believed that his intervention was necessary, and that the rescuer retreats if the victim would be required to do so.

If in the course of intentionally defending himself or another, a defendant recklessly or negligently injures or kills a third person, self-defense will not bar liability, but it will reduce the gravity of the charge from an intentional crime to a reckless or negligent crime.

Therefore, the further one removes oneself from the connection to the victim, the more tenuous the claim of a right to defend that person.

Funny quotes:

Re: Pro-gun ‘soccer mom’ Meleanie Hain shot dead by husband during video chat
Posted by: jellymoulds on 10/10/09 at 01:28 PM

I think what Rthur is trying to say is that if someone straps concealed explosives to themselves and then goes to a theme park, they are simply exercising their right to self-protection, a mode of self protection the US and Russia championed throughout the late 50's and early 60's - mutually assured destruction. After all the queen has an entire air force, army and navy protecting her, therefore it can't be wrong for a US individual.

Re: Pro-gun ‘soccer mom’ Meleanie Hain shot dead by husband during video chat
Posted by: judge_d on 10/10/09 at 02:04 PM
> as a commoner i want and have the same ability as a queen

Quote of the week folks!!!

You go rthur! I reckon a wig, sparkly dress and high heels and you're sorted!

Altogether now...

It's Raining Men! Hallelujah! - It's Raining Men! Amen!
I'm gonna go out to run and let myself get
Absolutely soaking wet!


Not as funny, but makes the point well a bit further down:

Re: Pro-gun ‘soccer mom’ Meleanie Hain shot dead by husband during video chat
Posted by: jellymoulds on 11/10/09 at 01:09 AM
Guns are too entrenched in American culture to be 'banned' . For this reason American guns will carry on killing and killing and killing and killing innocent victims for decades to come.

Thanks to diehards like Rthur, we are reminded that every US citizen has the right to be killed by a fellow, gun-carrying American. There is no number of innocent deaths sufficient to make gun nuts question their 'rights'.

Why do you want to take my gun away from me?

Why do you want to take my gun away from me?

Hey, I don't mind you having guns. In fact, I hope you gun cretins all shoot yourselves and make the world a better place just like Melanie did. No, that's not hate, just a sincere desire to see a better world, which this will be without your sorry arses preventing proper gun laws from being adopted.

I don't want to take the guns away from responsible gun owners. Believe it or not, I have quite a collection of firearms that I keep unloaded and locked. In fact, I have no ammunition in my house!

I would give up my guns if need came to as I have not shot them in 6 years. One needs to practise to be effective in using a firearm: epecially in a self-defence situation.

On the other hand, I can ask you why you fear I would take your gun from you: do you have them to wage war against the government (see US Constitution Article III, Section iii Treason)? Are you an irresponsible gun owner?

What about my right to use a gun to defend myself? Well, if you want to keep a gun for "self-protection", I can't stop you. But you need to be realistic and keep in mind that you are far more likely to harm a family member or yourself than an intruder.

Melanie Hain unfortunately is indeed a good example of what can happen to people who keep firearms for self-defence.

Most stories of defensive gun use are anecdotal rather than based in fact. US department of Justice Statistics show that defensive gun use is actually very rare. Effective Defensive Gun Use very rare.

Any right you have to a firearm would come under a state constitutional provision, not the US Constitution, especially the Second Amendment.

Unfortunately, Federal law trumps state law per Article VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Where were the SAS when we really could have used them?

This is a reference to Operation Flavius, the incident where SAS troopers shot and killed three terrorists on Gibraltar which was characterised as an 'execution' with no attempt to arrest the IRA members by the ITV programme Death on the Rock. There are allegations that the SAS had a shoot to kill policy against IRA terrorists.

Now, thinking about it, the entire idea that there was a right to armed self-defence is silly if we think about the armed thugs who called themselves "patriots" that existed at the time of the War for American Independence who ran around destroying property or tarring and feathering British Officials who were just doing their jobs. I mean shouldn't a British Tax collector who had legal authority have some sort of firearm for self-defence in this type of situation? Wouldn't they be justified in using them when they were being attacked by an angry mob?

Unfortunately, that wasn't the case! Take for example:

The Boston Massacre which was an incident that led to the deaths of five "civilians" (actually rioters) at the hands of British troops on March 5, 1770. 7 British squaddies and their officer were surrounded by a lawless, angry, and violent mob intent on harm. The soldiers were simply keeping guard and trying to keep the peace. One of the riotous attackers threw a club at private Hugh Montgomery, knocking him off his feet. Rising, Montgomery fired a shot into the air. He was stricken again with a club and Montgomery had no choice but to point his gun at the attacker, Richard Palmes who quickly fled. At the same time another soldier Private Matthew Killroy pointed his musket at the other two attackers, Edward Langford and Samuel Gray. “God damn you, don’t fire!” Gray called out.The anger and the fear of being beaten by a club like his fellow solder, private Killroy pulled the trigger and mortally wounded Gray. More shots were fired and more rioters fell to the ground wounded or dead, leaving the aftermath of 5 dead and 6 wounded civilians.

Gray deserved to be shot! The soldiers fired in self-defense. The thugs threw stones, bricks, and oyster-shells at the soldiers. A club-wielding man knocked down one of the soldiers. The soldiers were in fear of serious bodily injury or death, they had a right to fire their weapons.

Guess what, the British soldiers found themselves on trial because the use of a firearm against an attacker, even an armed and violently riotous one, was excessive force. Despite this fact, any possibility of a fair trial in Boston was impossible. Josiah Quincy and John Adams (yes, that John Adams) took it upon themselves to defend the soldiers. The justice prevailed and the jury vindicated the British regulars. Preston and his four men were fully acquitted and the other two solders were found guilty of lesser charges and sent back to England.

Now if they had CS gas back in 1770...

Likewise, 3 years later, a merchant vessel carrying tea was left unguarded in the same town and country with its reputation for mob violence. Now, wouldn't any self-respecting merchant have an armed crew, or even better either something like the 18th Century equivalent of Blackwater (or XE as it is now known) guarding his vessel knowing that the inhabitants of Boston were far from "law abiding"? Nope. Again, a gang of a hundred or so thugs violently deprived their countrymen of access to desirable goods to which the gang had not the slightest claim of ownership.

Again, you could imagine the screams if the law abiding merchant or his employees pulled a Harry Bennett and opened fire on the hooligans! Even better if they could have done so with machineguns as did Bennett! Not that the hooligans wouldn't have deserved getting shot for their illegal activites. In fact, the uppity locals would have been much better behaved if the British and Loyalists had fought back more frequently, let alone would have shot and killed the useless rebels.

Anyway, here is what those wimpy patriots had to say in their silly "Declaration of Independence" even without proper enforcement of the law by the systematic killing of the useless thugs who fashioned themselved "Patriots" by armed Loyalist hit squads:

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

For quartering large bodies of armed troops among us

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

I mean, really, think of the screams if there had been something like the SAS to asassinate the likes of Sam Adams, Patrick Henry, George Washington, Benjamin Franklin, Thomas Paine (the most deserving of a bullet to the skull), and so on! Although, I am sure most of these people (Paine, a professional agitator excepted) would be easily converted if they were able to see the nation that resulted from their foolishness. They would be appalled by what this country has become with RKBA and teabagging ninnies (although Franklin would like teabagging of the sexual kind).

Seriously, here is a rebellious mob complaining about "plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people". I mean, seriously, they were fighting lawful authority. They had it coming to them.

I mean if there was ever a case for self-defence by law abiding citizens loyal to the King, the War for American Independence was it! This was a case of terrorism and the "patriots" should have been treated like the terrorists they were.

No Duty to Retreat: Violence and Values in American History and Society

No Duty to Retreat: Violence and Values in American History and Society by Richard Maxwell Brown

Product Description

In 1865, Wild Bill Hickok killed Dave Tutt in a Missouri public square in the West's first notable "walkdown." One hundred and twenty-nine years later, Bernhard Goetz shot four threatening young men in a New York subway car. Apart from gunfire, what could the two events possibly have in common? Goetz, writes Richard Maxwell Brown, was acquitted of wrongdoing in the spirit of a uniquely American view of self-defense, a view forged in frontier gunfights like Hickok's. When faced with a deadly threat, we have the right to stand our ground and fight. We have no duty to retreat.

No Duty to Retreat offers an engrossing account of how this idea of self-defense emerged, focusing in particular on the gunfights of the frontier and their impact on our legal traditions. The right to stand one's ground, Brown tells us, appeared relatively recently. Under English common law, the threatened party had a legal duty to retreat "to the wall" before fighting back. But from the nineteenth century on, such authorities as Justice Oliver Wendell Holmes rejected this doctrine as unsuited to both the American mind and the age of firearms. Brown sketches the influence of frontier violence, demonstrating the tremendous impact of the famous gunmen and the prevalence of what he calls "grassroots gunfighters"--unsung men who resorted to their guns at a moment's notice. These duels, ambushes, and firefights, he writes, were more than personal vendettas: They were part of a "Western Civil War of Incorporation," pitting gunmen--usually Republicans and Unionists, who sided with the expanding banks, railroads, and businesses--against cowboys and independent farmers, who were often Democrats sympathizing with the Confederacy. Brown examines the gunfight near the O.K. Corral in this light, showing how it was a climax of tensions between Tombstone's Republican businessmen (represented by Wyatt Earp) and the county's cowboys (led by the Clantons and McLaurys). He also looks at such lesser-known battles as the Mussel Slough war, in which resisting farmers, imbued with the no-retreat ethic, fought for their independent lifestyle against encroaching rail barons. This Civil War of Incorporation fed the violence of the West and reinforced the legal doctrine of "no duty to retreat."

The frontier days are long past, but Brown shows how the ethic of no retreat continues to shape everything from our entertainment to our foreign policy (including President Bush's "line drawn in the sand") to our politics to cases like that of Bernhard Goetz. Though challenged as never before by the values of peace and social activism, it remains a central theme in American thought and character.

Again, any duty to not retreat would come much later than the time of the drafting of the US Bill of Rights. Dave Kopel's self-defence cases date from 1893 to 1896, over 100 years after the US Bill of Rights was drafted.

Interesting how these cases come in the period after the US Civil War as that is the period that Michael Bellesisles claims the US gun culture "began".

How will your militia be armed? (or still more Heller critique)

Like a magician, or other illusionist, Scalia diverts your attention from the real focus of the Second Amendment.

JUSTICE STEVENS relies on the drafting history of the
Second Amendment—the various proposals in the state
conventions and the debates in Congress. It is dubious to
rely on such history to interpret a text that was widely
understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative
history is relevant, JUSTICE STEVENS flatly misreads
the historical record.

Heller at p. 30

The problem is that all the quotes from the drafting history of the Second Amendment show that the concern was not a "pre-existing right" of self-defence by individuals (states yes, individuals NO). In fact, since the right is the created by the Second Amendment, that is the right which needs to be discussed. We are discussing the US constitution and the bill of rights in LEGAL sense, not popular misconceptions of that right. Also, Blackstone totally contradicts the pre-existing right of armed self-defence argument (see linked post).

Scalia spent all of Heller trying to diminsh the focus of the Second Amendment from the Militia. The problem was that the Second Amendment was specifically drafted to ensure that the Militia would be armed and that institution remain vibrant. Hence Patrick Henry's comment that was frequently used by the "RKBA" crowd.

that every man be armed

The text of the Constitutional debates surrounding the Second Amendment can be found here and here.

Self-defence was not at issue during these debates. In fact, Patrick Henry is discussing Article I, Section 8 in the record and the fact that the Federal government might not arm the militia. In fact, the full Henry quote reiterates the Article I, Section 8 language in the complete quote (see highlighted text).

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed.

More of this quote is as follows.

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7)
Virginia, Saturday, June 14, 1788.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html


Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Like the Second Amendment and the Constitution, there is no mention of the concept of self-defence. The debates are published and anyone who cares to review than can do so. I really don't have the time or inclination to do so here.

Scalia gives short shrift to the actual ratification debates of the States and relies on quotes which are not contemporaneous with the adoption of the bill of rights because he doesn't want fact to ruin the fiction he has created with his new right. This right did not exist in connection to the Second Amendment until he put it on paper last year.

If anything, the quotes that Scalia uses show that his argument is without merit as the concept of self-defence may have been considered, but was not worthy of being mentioned in the Second Amendment. As I say, where are the words "self-defence" in the Constitution?

On the other hand, it is ridiculous to say that the Second Amendment enshrines a pre-existing right of armed self-defence. This right has never existed in common law, or in US Constitutional law prior to Scalia's pronouncement.

Immediate interpretation was by the Militia Act of Militia Act of 1792 providing for the authority of the President to call out the Militia which was passed 2 May 1792 by the Second Congress (Session I. Chapter XXVIII).

Scalia gives a lovely illusion, but it doesn't stand close scrutiny like any other illusion.

Or to quote the man:

“What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be
grounded in consistently applied principle. That is what
prevents judges from ruling now this way, now that—
thumbs up or thumbs down—as their personal preferences
dictate. Today’s opinion forthrightly (or actually,
somewhat less than forthrightly) admits that it does not
rest upon consistently applied principle.”

I hate to end this with a question, but what exactly is Scalia's judicial philosophy?

Yet another critique of Scalia's argument in Heller.

Scalia's use of state constitutional provisions is unconvincing from a legal standpoint. State constitutions often grant individuals more protection than do analogous provisions of the federal Constitution. States also protect individual rights which are nowhere to be found in the US constutition.

For example, some states hold that their residents have an "expectation of privacy" in their garbage, meaning that the government must have probable cause to search garbage. Some states hold that traffic "check lanes," where entire lanes of drivers are stopped and checked by the police, are unconstitutional. The United States Supreme Court has held that the Federal Constitution does not recognize an expectation of privacy in garbage, and that traffic check lanes are constitutionally permissible.

States can only add to your Federal constitutional rights -- they cannot pass constitutional amendments that restrict the rights you receive under the Federal Constitution.

A state court's interpretation of the state constitution can differ from an interpretation of an overlapping federally protected right. The variance may arise from a number of circumstances, including textual differences, different legislative histories, and disagreement among courts about the correct interpretation of constitutional language. For some, independent state interpretation of state bills of rights has the benefit of allowing states to be laboratories of experimentation for new or different legal doctrines. Moreover, a state court may be better able to provide stability and clarity of law than a distant federal court.

The problem here is that Scalia used differently worded State constitutional guarantees to try to interpret the US constition. These differently worded provisions only act to obfuscate the proper inquiry.

Another no-no, but Scalia was coming up with his new right.

The problem is that there already was a unanimous decision in US v. Miller that provided this guidance to the interpretation of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

UNITED STATES v. MILLER, 307 U.S. 174 (1939)

The obvious answer here is that Scalia had a new interpretation which was without legal basis or preedent that he wanted to justify.

Heller--Individual Right? Again, not so fast!

I was googling "Second Amendment military budget" and found this piece by Akhil Reed Amar where he admits that the Second Amendment doesn't contain the right to armed self-defence. But he tries to make an argument that other provisions of the Constitution do, namely the ninth and fourteenth Amendments. He is making an analogy to the right to privacy and the Roe v. Wade. Maybe he's been reading these blogs, or maybe I am reading the justices correctly.

Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.

Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.

So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.

Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?

On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.

But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.

So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.

From the Vatican

A second point, which has long been a grave concern for the Holy See, in the framework of criminal justice and crime prevention, is the sale and possession of firearms. This issue is closely related to building peace and is a key component of a truly sustainable economic and social development. Clearly, there is a link between crime and trafficking in firearms that feeds terrorism at national and international levels. A reduction in the availability of firearms will facilitate the establishment of peace and security. It will also contribute to channel money spent on trafficking weapons, into programmes for development.

INTERVENTION BY THE HOLY SEE AT THE ELEVENTH UNITED NATIONS CONGRESS ON CRIME PREVENTION AND CRIMINAL JUSTICE (BANGKOK, 18-25 APRIL 2005)

Now, I am pretty sure that the Vatican didn't directly weigh in on the issue of DC v. Heller, but we have the above concern expressed by the them regarding crime prevention. Now, the "Conservative" block of the Justices (CJ Roberts, JJ Scalia, Kennedy, and Alito) are all Catholics and should keep in mind that this is an issue that the Church has expressed concern. I was hoping to find a way to contact the Pope and ask for some sort of comment on this case.

I would be pretty certain that he would side with Washington, DC in its desire to control firearms within its jurisdiction. I can't be certain to what extent the Church would go in its opinion. I found this article from the bishop of the Diocese of Juneau, Alaska about Catholicism and gun control. Of course, the Church points out that gun control is not a panacea, but only a part of a project which requires other social matters.

The "right" of self-defence is not a part of the Constitution and in no way should be part of the constitution. To say one has a right of first recourse to deadly force flies in the face of how the concept of self-defence was understood at the time of the Constitution:

THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cafes, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blacktone's Commentaries on the Law of England, PRIVATE WRONGS, BOOK III., Ch. 1

OK, it is well settled that the law of self-defence only allows the minimum of force allowed to stop the threat. Any excessive force (e.g., deadly force) can turn the defender in to an aggressor.

Now, I am looking at the St. George Tucker quote and wondering if it has been taken out of context and is actually a gloss on the Blackstone's piece on British Bill of Rights, NOT the US Bill of Rights. That would be the problem with taking quotes out of context, which I can imagine most people quoting this are doing. In fact, I think quite a bit of the "Scholarship" is people doing term searches and then just using the quote without concern of meaning or context (e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)). There are copies of Tucker's commentaries on line:

http://www.lonang.com/exlibris/tucker/index.html
http://www.constitution.org/tb/tb-0000.htm

I was able to find the whole gloss at Constitution.org, but it was chopped up so much that it was rather worthless. Indeed, it appeared to be more of a gloss on the British Bill of Rights. Compare and Contrast the British Bill of Rights to that of The US Bill of Rights seemed to have been a theme in the Heller arguments of which the advocates did a lousy job. As I said before, I am not sure what these people had been doing with their time.

Anyway, both Blackstone and St. George Tucker are rather long works which I doubt that many people have plowed through. Most of the time, Tucker is just updating Blackstone and trying to make it applicable to the US experience, especially post-rebellion. Given that the only print copy of Tucker costs US$450, I don't see too many people actually buying a copy and reading it! And given the cite for the Tucker quote: St. George Tucker, Blackstone's Commentaries 1:App. 300, he may actually be discussing the British Bill of Rights. I would also add that Tucker was not a party to the Constitutional debates, which only means that this is his opinion and definitely not legal authority regarding the Second Amendment.

On the other hand, I am really not here to discuss Blackstone, Tucker, or the "right of self-defence" which is not a Constitutional concept, but that the Vatican has expressed an opinion that firearms should be regulated. The concept of Self-defence has no requirement that firearms be made available. In fact, it has the requirement that only the minimum of force needed to stop the threat is used. The Catholic church talks about respecting life and the Constitution says that life cannot deprived without due process of law. To constitutionally sanction deadly force in self-defence flies in front of all that is proper.

There is no reason to place the "right of self-defence" within the Constitution. On the other hand, there are more than enough reasons to ensure that legislatures can regulate firearms without having to fear being second guessed by the court system.

Self-defence, nuclear weapons, and the Constitution

Why can't I own nuclear weapons? The Second Amendment guarantees it!

This argument comes up from time to time during gun control arguments. An anti-gun person who intends to use it as a strawman argument usually offers it facetiously or sarcastically. A strawman is a logical fallacy in which a debater exaggerates an opponent's position, directs arguments at this exaggerated position, and claims to have defeated the opponent's real argument.

No this isn't a "straw-man" argument. It is a very valid critique of the individual right position.

I decided to do a search using the text of the Constitution, which is available here.

Now the term "self-defence" is never used in this document. Neither is "democracy" for that matter, instead this country is formed as a republic (article 4, section 4).

On the other hand, "provide for the common Defence" is used twice, once in the preamble and in Article I, Section 8.

The term "self" shows up once in the fifth amendment regarding self-incrimination: "nor shall be compelled in any criminal case to be a witness against himself."

Since the term self-defence is never mentioned in the Second Amendment, or the Constitution. And, given the term common defence IS used. It is very obvious that the intent of the Constitution is to deal with the common defence and not self-defence. I think it is sensible that the Second Amendment is not extended to the common law concept of self-defence.

Moreover, this is borne out in the debates regarding both the militia and the adoption of the Second Amendment. Never was the "right of self-defence" (or even "self-defence") mentioned during these debates. The issue was the common defence, not personal defence. Personal defence was not a concern. The ultimate issue was the possibility of the establishment of a standing army over the institution of the militia. As I have said before, Justice Kennedy's frontier farmer's family could have been scalped and the women raped for all "we the people" who wrote the Constitution could have cared in respect to the Second Amendment. The issue was not private arms, but the plenary power of Congress over the militia and the establishment of a standing army.

I have more than enough posts on this topic to delve too far with the issue of self-defence here, but it is a common law concept, not a Constitutional one.

In fact, the Pennsylvania Minority is mentioned regarding a personal right, yet they said "no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". This says that public injury is a reason for disarming the people. Would they support gun control given the current cost of gun violence in this country? And, the Pennsylvania minority is usually cited as a pro-self-defence position.

True, I cannot use a nuclear weapon for self-defence if that is the alleged purpose of the Second Amendment, but I am more than justified if the right extends to military purposes. We can't read the term "the people" broadly and then restrict the term "arms". That is a logical inconsistency. Both must be read broadly or read narrowly. One can't read one term narrowly and the other broadly.

Additionally, if I am entitled to a personal right to fight tyrant's armies and invading forces, then it makes total sense to have a nuclear or other form of weapon of mass destruction. I cannot fight off a tyrant who is equipped with missiles and tanks if I am not similarly equipped. Where would the US have been had Saddam Hussein actually possessed and used WMD?

On the other hand, the "right of self-defence" is one at common law and can be limited in scope by law. One cannot repulse the attack with such force that one then becomes the attacker to paraphrase Blackstone (and St. George Tucker). We see in other common law jurisdictions (e.g., Britain and Canada) where personal defence weapons are barred from ownership. Additionally, one cannot use self-defence as a reason to justify firearms ownership in Britain. In fact, the use of deadly force is extremely limited at common law, which means that a firearm is definitely not the first choice of self-defence weapon.

There is absolutely no reason to open up the Second Amendment to add the common law concept of self-defence. To do so would be to destroy the constitution. We will see all forms of litigation if a personal right is recognised where it doesn't exist. Whether that is challenging laws regarding machineguns, felon in possession, sentencing, etcetera. There is more than just a hint that this will happen as I have also cited in my other posts.

And I will indeed file a petition to the Supreme Court claiming that my Second Amendment rights are being infringed by treaties limiting nuclear weeapons if it finds an individual right.

Heller: Individual right? Not so fast!

A literature teacher advised me that one should read a poem like it's a love letter and go over every possible meaning of the words. Likewise, one should read a judicial decision, or the argument in this case the same way. Thinking about every possible permutation of the meanings. Which is why I am not so certain that they SCOTUS will find an individual right.

The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.

I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.

I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.

First off, the Second Amendment reads:

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.

That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?

This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.

The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.

All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.

Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.

Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.

Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).

OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.

This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:

The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787

That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.

Article XIII of the Virginia Declaration of Rights.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."

Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:

§ 1889. The next amendment is: "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."

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.

But not as badly as Gura does in this excerpt:

But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That's your answer.
JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.
MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver.

By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:

The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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."

The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

Not the best thing for Gura to have pulled from his hat to support his case.

Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:

Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.

The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

To summarise still yet more even yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:

"....After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361....We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions....We agree with numerous other courts that 'the Second Amendment guarantees a collective rather than an individual right.'....The purpose of the second amendment is 'to preserve the effectiveness and assure the continuation of the state militia.'.... Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia."

Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.

Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.

Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.

"But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'....The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment's assembly clause, which textually abuts the Second Amendment, is the right of 'the people'--in essence, voters--to 'assemble' in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to 'the people' in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.' Here, the collective 'people' wording is paired with more individualistic language of 'persons.'"

Which takes us to this exchange between Gura and JJ. Scalia and Souter:

MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.
JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
MR. GURA: Well, we do acknowledge that, Your Honor.
JUSTICE SOUTER: Then why have the first clause? I mean what is it doing -- I mean what help is it going to be?

And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.

The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.

The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.

I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?

Trigger locks

The more I think about it, the more Chief Justice Roberts's and Justice Scalia's questions about trigger locks were off point during Dellinger's rebuttal. Dellinger was too poor an advocate to regain control. This is surprising given his experience before the Court.

First off, there is no right to self-defence in the Second Amendment. Furthermore, there is no right to own a firearm for self-defence purposes. This is the case in other common law jurisdictions and should be such in this one as well.

Secondly, the standard is whether something impedes upon the efficacy of the militia. Given this standard, we can take the example of Switzerland. A Swiss "army" member has an assault rifle in his house; however, he is subject to stiff penalties should he use it.

Every soldier equipped with the Sig 550 assault rifle is issued 50 rounds of ammunition in a sealed box, to be opened only upon alert. The ammunition is then loaded into the rifle magazine for use by the militiaman should any needs arise while he is en route to join his unit. Any other use than this, or even unsealing the ammunition is strictly forbidden. Since summer 2007, there is no storage of ammunition in private homes. No new boxes of ammunition have been issued to Swiss army members and those in private homes have been collected.

So, unless the trigger lock has a bearing upon the militia member's efficacy, this is a distraction. In fact, the National guard has held arms in its armouries since the late 19th Century. Is this a violation of the Second Amendment?

There is a reason for a dearth of Second Amendment case law and that it that the times that it is truly applicable are extremely limited. The issue of private ownership of firearms outside of militia service is not under its ambit. And the issue for which it was supposed to address, the vast military industrial complex, has remained unchallenged.

the strict constructionist and the Second Amendment

I read that any law which does not literally impinge on an explicitly enumerated right in the Constitution passes judicial scrutiny according to the strict constructionist view.

Now, I just did a search of the constitution for self-defence, and nowhere is that term mentioned. Which means that self-defence is not a constitutionally protected right.

Again, as I mentioned in my posts on the Heller Oral arguments, the Second Amendment does not mention this. Self-defence is a common law concept, not a constitutional one.

If the object of Justices Scalia, Thomas, and Alito is to not impinge upon an expressly enumerated right, then the District's gun laws do not. Self-defence was not at issue when the Second Amendment was drafted and is not an enumerated right in the constitution.

On the other hand, the establishment of a standing army was the issue.

The Second Amendment is a dead letter, especially regarding the right of an individual to own a firearm for self-defence. Self-defence was not a concern.

Justice Kennedy's frontier farmer could be scalped and the women raped for all the "people" who wrote the Constitution cared. The issue was not self-defence, but assure the continuation and render possible the effectiveness of the body organised under Article I, Section 8, which at that time was called the militia and is now the national guard.

To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe. It is to create a Constitutional right where none existed. It is to forgo public safety for no sane reason. Worst of all, it is to second guess legislatures and destroy the rule of law.

The law of self-defence

The issue of Self-defence in regard to the Second Amendment is a real diversion. As I consistently point out, the term is not mentioned in the Second Amendment. Secondly, the use of deadly force is extremely limited in most jurisdictions. Of course, there are the "licence to murder" laws which change the common law concept of self-defence to make deadly force a first option.

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force would only be excused in situations of "extreme" danger. In other words, you must be threatened by deadly force to use deadly force. If the attacker can be stopped with a non-lethal agent (e.g., pepper spray), then you don't have the right to use deadly force.

So, The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. On the other hand, you would be justified if you had been robbed by someone with a replica firearm or BB gun and shot the robber. But, if you were a black belt and disarmed the person, you would stand a better chance of getting off.

So, when an assailant ceases to be a threat (say, being tackled and restrained), the defense will fail if the defending party presses on to attack. One is justified in using enough force to stop the attach, but one cannot go beyond that force and become the aggressor. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant wasn't yet in enough danger to justify lethal force in the first place.

Some jurisdictions have a duty to retreat. This means that if you could back down, or run away, from the threat, you are not justified in using force. Of course, the duty of retreat makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception which argues that one cannot be expected to retreat from one's own home, namely, “a man’s house is his castle, et domus sua cuique est tutissimum refugium " i.e. Latin for "and each man’s home is his safest refuge”).　However, if one is "challenged" in a bar for a fight, accepting such challenge, instead of walking away, generally will not constitute a self defense.

Again, if one could deescalate the situation, but fails to do so, you cannot say that you acted in self-defence.

In some jurisdictions, the concept of "pre-emptive" self defense is limited by a requirement that the threat be imminent. Thus, lawful "pre-emptive" self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person. Again, the force used must only be that necessary to stop the threat.

The problem is that the RKBA crowd want to get more guns on the streets via liberalised CCW laws and the "licence to murder laws" which change the definiton of self-defence to allow for the use of deadly force in situations where it is not justifiable under common law.

No one has the right to deadly force, especially if one wishes to link this to the right of militia members to "keep and bear arms". We have two separate concepts working here: Militia service and self-defence. Every common law jurisdiction has the heritage of these two concepts, yet other common law jurisdictions severely restrict the items which can be used for self-defence. Anyone who has been to England or Canada knows that things like pepper spray, mace, stun guns, and especially firearms and not allowed to be possessed for self-defence.

Another thing which I find odd, is that with all this talk about right to life, no one has brought in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms which defines the Right to Life as follows:

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

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 it 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, [1971] AC 814:

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.

So, to argue that one has a right to arms for self-defence is a misunderstanding of the common-law concept of self-defence. One only has the right to use as much force is necessary to stop that threat. There is no right to use a firearm if a non-lethal alternative exists that can stop the attack (e.g., pepper spray).

Additionally, one can argue that the right to life means that one cannot be deprived "of life, liberty, or property, without due process of law." The fifth Amendment specifically states this, which would put it in conflict with the Second Amendment if that allows for the use of deadly force without justification.

To argue that the Second Amendment allows for the ownership of firearms for self-defence is to take both the Second Amendment and the concept of self-defence totally out of context.