except for felons and mental cases .. they don't have the right of self defense.. err .. not with a gun ..

maybe that's where switchblades and stun guns come in .. are those "arms' available for self defense by felons and mental misfits .. ?

did i need a court ruling to positively affirm my right of self defense .. was it dormant prior to the ruling ..

is "self defense" truly a right .. or is it a rule .. or a principle .. ?

can i defend just myself nd other persons .. or pets ..in the home only .. or can i use my right of self defense to also vouchsafe my property boundries ? can i shoot those who fatally wander onto my property ..depending on my assessment of the level of threat .. ?? if i'm outside of texas does my "right" rule ,, or principle extend to my neighbors-defense as well ?

isn't there also a doctrine of "appropriate response" ? if one is threatend by an intruder with a toothpick ..does responding with a redwood qualify as inappropriate ? two redwoods .. three .. where's the line ?

how many thousands of court cases will it take to clarify all which augurs from Heller ?
 

btw .. choose your answers carefully ..

i don't know about y'all ..but i'm always fully armed when i come to this den of lawyers ..

and i'm certain beyond-a-reasonable-doubt ..and also by a preponderance-of-the-evidence the doctrine of 'self-defense' could easily be extended and argued to encompass 'post-defense' as well by some of our able attorneys and philosophers-of-law in this venue .. if not beyond .. :)
 

I personally will be happy to explain each and every aspect of this "right of self-defense" in a way which clearly and consistently resolves every one of Prof. Balkin's hypotheticals, as soon as he first defines the parameters of the even better-known "right to define for oneself the meaning of the mystery of existence."
 

Here is a comment I put up on Sandy's earlier post on the right to hunt that may be more appropriate here:


"Self defense is not limited to using a gun or a rifle. One can use his fists, elbows, knees, feet (shod or not), voice, a lamp, a book, a pike, a knife, or other material things that may be available at the time the right of self defense is employed. How about spraying mace or some other chemical? The emphasis upon guns is too convenient a political argument invoking the Second Amendment. Some of these methods of defense are more deadly than others. Of course the person using force in self defense must prove the danger, etc, that justifies the use of such force. I don't think the Constitution addresses whether or not the use of such force was justified under the circumstances. With the advent of motion pictures followed by television, we have long been visually exposed to the use of guns in self defense. Perhaps that is why the use of guns in self defense is imbedded in the discussion of the Second Amendment. Maybe it goes back to childhood games of cowboys and indians. But "arms" in the Second Amendment is not limited to guns. Yet the emphasis in Heller and post-decision discussions is upon guns, versus other "arms." In due course can we expect the use of "arms" other than guns to come into play in self defense? For example, let's take a very wealthy person fearful of his life who hires people to protect him, as part of his self defense, both at home and away from home, and how they and he might be armed for his self defense. Might the "arms" utilized in this self defense go well beyond guns? If so, then shouldn't the same, funds permitting, be available to a not so wealthy person? And how far will the concept of self defense be stretched? Is all this really a matter of the Second Amendment or of the basic laws of the states and the federal government in the protection of the citizenry?
# posted by Blogger Shag from Brookline : 7:03 AM"

Is self defense a slippery slope?
 

self defense is indeed a slippery slope shaq .. as you can easily see .. in my opening post i readily [and quite opportunistically.. i might add] extended it from applying only within the originalist interior of my home to the property boundries ..and then [since i was already at defense] into my neighbors' yard if need be ..

fully expecting..and having every faith some maven of the law here would find.. a way to incorporate my amendment to the plea if need be .. in order to encompass a defense of my potential offense in having done so ..

imo .. both "arms" and "self defense" are expandable concepts ..

some might even argue that self-defense extends even to the action of pre-emptive assault .. errr defense .. i mean ..after all .. if my neighbor informs me [or in our most modern usage ..i simply suspect] he is going to try and kill me at 5:00 .. surely the concept justifies me taking him our first at 4:59 .. [ i can give you a very big cite on this if it'll help my defense.. btw ]

and professor balkin .. you can see what coming disarmed to the forum has wrought for you ..

you have already been assaulted .. i suggest if the assaulter had suspected you were ..as i am now .. fully armed .. and have no qualms about it .. he would have thunk twice before firing that blank above ... milita or no .. eh ??
 

It is almost inconceivable that there is not an implied right to self defense guaranteed by the Ninth Amendment. Self defense is perhaps the oldest and most well established affirmative defense in criminal law. The very fact of this establishment in common law and statute is probably why citizens do not need to turn to the Constitution to seek protection.

I do not read the Heller opinion as holding that the Second Amendment is a source for such a constitutional right. Rather, the preexisting right which the Second Amendment guarantees is to possess and carry arms for traditionally lawful purposes. Self defense is simply one of those purposes regardless of the source of that right.

As an aside, if Roe were reversed and the law of homicide recognized the unborn as persons under the law, most jurisdictions would grant a mother the affirmative defense of self defense if she were to kill her unborn child to protect herself against death or substantial bodily injury.
 

The outer limits of the scope of a self defense right can be inferred from the term itself - actions taken by oneself to defend oneself from the acts of another.

Once the outer limits of self defense are defined, most of the hypos resolve themselves.

Self defense by its own terms would not compel others to assist you to avoid death.

Moreover, this right involves a defense of person and not property. Defense of property is a separate and not nearly as well established line of the law.
 

Well, I'm convinced. I want reactive armor for my (small) car, so that the next time one of those tahoes, hummers, or excursions rear-ends me, they'll end up half a block back.

Think of it as an "self-defense enhanced airbag."
 

I just wanted to point out that a mother who kills her unborn baby in order to protect herself against death would not qualify for a self-defense claim in most jurisdictions.

A person is entitled to use force in self-defense only in response to the use of "unlawful force" (see Section 3.04 of the Model Penal Code). Force is unlawful according to the MPC only if it amounts to a "criminal offense" or an "actionable tort". It would, of course, be absurd to claim that the unborn child is employing "unlawful force" against the mother.

In such jurisdictions, the mother would, at the most, have a possible necessity claim grounded on the notion that killing the unborn child is somehow the "lesser evil" under the circumstances.
 

I think Justice Scalia was in fact taking cognizance of the current realities of the Bush Administration. He recognizes "the ancient right" to bear arms, with a special constitutional nod at the one purpose expressed in it, to organize the already existing militia against tyranny, among other things. Since the likelihood of tyranny has not been stronger since the Bill of Rights was adopted, a majority of the Court is recognizing our right to own (hand)guns so we can overthrow, or protect ourselves from, the tyrant administration. Of course, as the Scalia says, many, if not most, questions remain unanswered. Since the tyrant has access to bigger guns then the militia, does that mean, grounded in the idea of proportionality in self-defense, that we now have a right to demand, purchase and use bigger guns? What about other weapons, like hand-grenades, surface to air missiles, machine guns and so on? What exactly would a militia need? If we cast about for some kind of standard with which to measure the scope of the right to protect ourselves from tyranny, can we use that developed by our clandestine services for "regime change" in other states? Is Scalia morally absolving Carter, Bush 2 and other architects of AQ? Is he, by implication, supporting the current arming of AQ-types in Iran? Is this Court recognizing, really, the right/duty to revolt?
 

luis:
luis said...

I just wanted to point out that a mother who kills her unborn baby in order to protect herself against death would not qualify for a self-defense claim in most jurisdictions.

A person is entitled to use force in self-defense only in response to the use of "unlawful force" (see Section 3.04 of the Model Penal Code). Force is unlawful according to the MPC only if it amounts to a "criminal offense" or an "actionable tort". It would, of course, be absurd to claim that the unborn child is employing "unlawful force" against the mother.

You make an interesting point. However, homicide and battery are only lawful under specific limited purposes such as self defense. I would therefore suggest that any act by another that does not fall under one of these exceptions and poses a reasonable threat of death or substantial physical harm to another is "unlawful" for the purpose of self defense.

For example, let us assume that a person who is legally insane takes a pistol and starts shooting at you. If the insane person kills you, he is not liable for the crime of murder because he cannot have the intent to do so. However, the act of shooting at you and placing you in danger of death or serious bodily injury is still not lawful and you may exercise self defense and kill the insane man shooting at you.

I would place the unborn child in the same category as the insane man. The child does not have the capacity to intend to kill or seriously injure her mother, but the danger is still there nonetheless and does not fall under any lawful exception.
 

I just wanted to point out that a mother who kills her unborn baby in order to protect herself against death would not qualify for a self-defense claim in most jurisdictions.

A person is entitled to use force in self-defense only in response to the use of "unlawful force" (see Section 3.04 of the Model Penal Code). Force is unlawful according to the MPC only if it amounts to a "criminal offense" or an "actionable tort".

You're assuming that these statutory restrictions on the right are constitutional. For an argument that the natural right extends much further -- even to convicted criminals against the force of the state -- see Thomas Hobbes.

Of course, originalists might claim that we should recognize as constitutional only the right of self-defense as recognized in 1791. In general, paraphrasing Blackstone, that required that the self-defense be (1) in response to a crime of violence; and (2) absolutely necessary. I'm afraid that rules out jkat's pre-emptive strike. He can always argue Hobbes, though....
 

Bart writes:As an aside, if Roe

Or, in honest wording, as an unrelated.
 

Since when do questions about a right bring into question the existence of the right itself?
 

In fact, I don't believe that courts will read Heller in the ways I have suggested in these hypotheticals. But that is not because these hypotheticals don't follow logically from the idea of self-defense. Rather, it is because I don't think the right recognized in Heller is really about protecting a right of self-defense. Behind all the talk about self-defense lies a larger and more powerful set of cultural concerns. Heller is about the right of people to own guns, and to use guns. That is the cultural meaning of Heller, and it is the right that social movements for gun rights have been particularly concerned to protect.

Finally, the post starts making sense.
 

Thanks for your comment, bart depalma.

You're right with regards to the insane aggressor hypothetical. Insane aggression is excused, not justified. The importance of this lies in the fact that excused conduct is, by definition, wrongful (i.e. unlawful). This is the point that George Fletcher convincingly made in his Psychotic Aggressor piece published in the Israel Law Review over 30 years ago.

I recently co-authored a piece with Fletcher discussing the nature of the threat that triggers a right to use force in self defense (you can find it in the criminal law conversations UPenn website under the title "Self-Defense and the Psychotic Aggressor").

It should also be noted that the psychotic aggressor's attack amounts to an "actionable tort", since tort law does not generally recognize an insanity defense. Thus, the psychotic aggressor's conduct would be clearly unlawful according to the MPC definition of the term.

I think that the problem of the unborn child is different. His so-called "attack" is not reflective of human agency. Thus, his conduct does not even satisfy the "act requirement". As a result, his conduct is more akin to a natural event than to a human act. If there is no "act", there can be no "wrongful attack".

In sum, I think that excused conduct that is reflective of human agency (the psychotic aggressor case) is clearly wrongful under the tort law. It is also unlawful according to the criminal law, even though the actor's excuse will relieve him of liability. It seems like a stretch to me, however, to consider that the unborn child's "conduct" is unlawful in the same way as the psychotic aggressor's attack, for it is (1) not reflective of human agency, (2) not amount to an actionable tort, (3) does not amount to an offense under the criminal law.
 

What I find fascinating is how all the historical evidence goes out the window when the Barts of the world start to imply that the Ninth Amendment codifies a right to self-defense that displaces state common law restrictions on self-defense that dated back to English common law from at least the Middle Ages on.

In other words, when we are talking about the right to own a gun (or the right to aborition), history is all that matters, judges are constrained.

But there is not a shred of evidence that anyone intended to or understood the Ninth Amendment as supplanting the state police power to impose limitations on the right of self-defense. Not one shred. This is classic judicial activism, and a nice demonstration that the entire "conservatives enforce the law as written, liberals make up new rights" rhetoric is a big fat lie.
 

no mr. field .. i'll not be arguing hobbes thesis .. he's a bit too taken with the dark side for my liking ..

i don't subscribe to the theory of pre-emption ..but i have noted it's use .. rather infamously re: poland.. and some other country as well .. hmmm ..

and i wonder here as well .. that using bart's crazy man as an example .. why it's not acceptable to simply disarm the crazy .. or if that were not possible .. why an attempt to incapicatate would not do as well .. in all the hypo's that come in .. it always seems that killing the offender is the only recourse .. if one has sufficient marksmanship to hit a vital fatal spot .. would not one just as well be able to say .. wing him in the gun arm instead ??

it's curious to me these hypo's always seem to require rendering them harmless as opposed to rendering them ineffective ..

and if a prosecutor could prove that point .. wouldn't there be big trouble on the docket ??

i thought the recent case in texas where the 62 year old man shot two burgulars in the back as they were leaving his neighbors property was a bit bizarre ..as he was "no billed" .. based on the wording or the interpretation of some texas statute ..

i agree with the theory that the inherent right of self defense properly falls under the ninth amendment to the constitution ... right alongside the right to privacy ..and the right to be left alone if one is abiding the law ..

LE agencies seem to think neither of the last two exist .. AAMOF .. i seem to recall scalia doesn't think either of those two rights exist either.. yet he finds a right to self defense in the 2nd .. is he anagramaholic .. ?? that's the only way i can get there using the 2nd .. but then perhaps being s layman cripples me somewhat in that regard .. employing latin might make it easier ...

mark field .. on another string i offered my thanks for your having provided links to the dorr rebellion and the luther case .. i'm repeating those thanks here in the event you missed them there .. luther was a very interesting and instructive read for me ..especially when viewed in the light of some of our more recent goings on 2001 to 2008 ...
 

luis:

Thank you for expanding on your point.

Model Penal Code § 3.11(1) defines "unlawful force" as " force...that is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force."

The offense and tort which would apply in the case of the involuntary growth and eventual birth of the unborn child is battery on the mother.

When the mens rea defenses are removed and the increased results of death or serious bodily injury are added, the offense and tort of battery consists of the following elements:

1. The unborn child will act (without thought) in a way which will result in a harmful or offensive contact with the mother's person;

2. The mother does not consent to the contact;

3. The harmful or offensive contact will cause the death of or serious bodily injury to the mother.

In sum, when the mens rea is removed as permitted under the MPC definition, what we are left with is an act without thought which will result in contact with the mother that will cause death or serious bodily injury.

This is something less than human agency, which is the conscious and voluntary interaction with our surroundings. Conscious and voluntary acts require mens rea of some level ranging from negligence to intent.

I suggest that, without a mens rea requirement, the battery on the mother can be caused by involuntary acts such as the growth and eventual birth of the unborn child.
 

no mr. field .. i'll not be arguing hobbes thesis .. he's a bit too taken with the dark side for my liking ..

i don't subscribe to the theory of pre-emption ..but i have noted it's use .. rather infamously re: poland.. and some other country as well .. hmmm ..

I knew you were joking, got the references, but just thought I'd play it straight so I could point out the potentially extreme limits of the natural right of self-defense.

mark field .. on another string i offered my thanks for your having provided links to the dorr rebellion and the luther case .. i'm repeating those thanks here in the event you missed them there .. luther was a very interesting and instructive read for me ..especially when viewed in the light of some of our more recent goings on 2001 to 2008 ...

I missed that (so many threads, so little time). I appreciate the thanks. I think that's a really fascinating incident with all kinds of consequences for what republican government means.
 

dilan:

The text of the Ninth Amendment has no meaning unless it guarantees unenumerated rights.

The original intent of the Ninth Amendment as derived from the drafting and ratifying debates was to avoid court application of the statutory rule of interpretation inclusio unius est exclusio alterius (the inclusion of one thing necessarily excludes others) to the Bill of Rights, thus limiting constitutionally protected rights to those enumerated in Amendments I-VIII.

There are two ways to identify a guaranteed unenumerated right:

1) Objectively by limiting the Ninth Amendment protection to those rights shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty,

Or

2) Subjectively to extend to any novel right a judge thinks ought to be protected by the Ninth Amendment. (The Ginsberg approach to abortion.)

I would suggest that the objective approach is more consistent with judicial restraint and the subjective approach is the epitome of judicial activism.

I applied the objective approach to the right of self defense, noting that there are few rights which are as deeply rooted in the law. Scalia was hardly "inventing a new right" by recognizing the long historical foundations of the right to self defense.

The fact that the drafters of the Constitution did not discuss all rights that the Ninth Amendment would guarantee is unsurprising. The Ninth Amendment is a classic catchall provision. If the drafters wanted to specify further rights, they would have enumerated them as further amendments in the Bill of Rights.
 

Bart DePalma,

Again, thanks for this interesting exchange. The meaning of section 3.11 remains unclear. The examples put forth in the MPC are all examples of excuses (duress, youth, mistake, etc) or non-exculpatory defenses (diplomatic immunity). The MPC expressly excludes justification defenses from the list of defenses that does not affect the wrongfulness of the conduct.

Thus, it is clear that the use of force in self-defense or pursuant to law enforcement authority (both justification defenses) does not amount to "unlawful force" that triggers a right to use defensive force.

According to your interpretation of the unborn child case, the only reason why the "conduct" of the fetus does not amount to a battery is because the fetus does not act with the requisite mens rea (i.e. intent). If that were actually the case, you would probably be right. However, I don't think that the "conduct" of the fetus does not amount to an actionable tort simply because he acts with no mens rea. I believe that there is something more fundamental going on in these cases: the fetus simply does not act. What is really missing in these cases is the actus reus, not the mens rea. If there is no actus reus, there is no need to examine whether the unborn child exhibited the requisite mens rea.

In sum, I take issue with your contention that the "unborn child will act (without thought)" and that, as a result, his "force" is "unlawful". While it is true that the unborn child moves "without thought", it is also true that the unborn child doesn't "act" at all. Again, his conduct is more akin to an act of nature than to a human act. This is important, for, as I stated before: if there is no "act", there can simply be no "wrongful attack" that triggers a right to use force in self-defense.

Ultimately, a fetus is not liable because fetuses are beings who are not capable of committing a tort in the first place, not because they have some sort of "defense" for their otherwise wrongful conduct.
 

I applied the objective approach to the right of self defense, noting that there are few rights which are as deeply rooted in the law. Scalia was hardly "inventing a new right" by recognizing the long historical foundations of the right to self defense.

But your hero Scalia says you can't simply identify a GENERAL tradition like "right to self defense", because that allows you to define ANYTHING as a right. See Michael H. v. Gerald D. Instead, you have to identify whether the SPECIFIC right was recognized.

The specific right, in this instance, is a right to self-defense that overrides state police powers to criminalize and make tortious uses of force with inadequate justification. And there is not a SHRED of evidence that the framers or anyone else in 1791 believed that this is what the Second OR Ninth Amendment would do.

Now, you can certainly give the Ninth Amendment a broader interpretation, but if you do that, stop telling me it doesn't protect a woman's right to privacy and gender equality (and thus abortion rights) as well. Neither position is originalist.
 

. . . there is not a shred of evidence that anyone intended to or understood the Ninth Amendment as supplanting the state police power to impose limitations on the right of self-defense . . .

Of course. I expect the Founding Fathers would have laughed at the suggestion.

Speaking of funny, how about those hitherto undiscovered Constitutional rights. What's even funnier, the same folks who objected to 'em are now the ones who discover 'em.

Maybe even better, a Kinky Friedman quote: "I don't carry a weapon myself. If someone wants to shoot me they'll have to bring their own gun". See, that's funny because it exposes the self-defense myth.

Wait, wait, it gets even better: the very same Supreme who objected to rights for prisoners because "Americans will die" now sees it the other way. Some sacred rights are more sacred than others, apparently. Funny stuff!

Or perhaps not that funny. Maybe exponents of this right could kindly explain to Christopher Rodriguez what exactly he should have done with a gun to defend himself. Not a lot of laughs there.
 

If you think a convicted felon maintains his right to self-defense, certainly you must believe in a right not to be strapped into a plethysmograph.
 

hmmm .. r. friedman ..

generally ... i believe even sentient animals have the right of self-preservation .. aka self-defense .. so yes .. i have to aver that if a felon has served his/her sentence they ..still being a human being retain the right of self-defense .. maybe not with a handgun .. per se ..under the law ..

but they have a right to do something other than meekly surrender their lives without resistance ..

and then there'd be the recent felons we've allowed to enlist in the military and then deployed to iraq .. those particular felons are not only armed by dint of the guv'mint .. but certainly have the right to self defense ..

so yes .. having the belief that all human beings .. and too all sentient animals have the right of self preservation .. felons as a specific class would maintain the right of self defense also ..

as to being subject to plethysography .. i'd have to know more about the why and wherefore before presuming to make a judgement on the merits .. certainly no female should be made to do so ... eh ??
 

Mark Field:

"You're assuming that these statutory restrictions on the right are constitutional. For an argument that the natural right extends much further -- even to convicted criminals against the force of the state -- see Thomas Hobbes."


*The obligation of Subjects to the Soveraign, is understood to last as long, and no longer, that the power lasteth, by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no Covenant be relinquished.*

Thomas Hobbes, Leviathan
Chapter XXI
 

Shag from Brooklyn:
"One can use his fists, elbows, knees, feet (shod or not), voice, a lamp, a book, a pike, a knife, or other material things..."

You know, you can find all manner of historically accurate, combat and SELF DEFENSE ready pikes, Halberds, daggers, cut and thrust swords, Scots Claymores, Irish Gallowglas two handed greatswords, Schiavonas, rapiers, cruciform swords, Roman gladius and pugio swords, German warhammers, gothic maces, and, of course, period accurate chain mail (steel, both butted or riveted, along with coifs and padded gambesons and arming caps) along with lovely German plate armor.

Check out WWW. museumqualityreplicas.com.

One stop shopping for your more unusual self defense needs:)
 

My bad. It's WWW.museumreplicas.com.

Sorry about that.
 

dilan:

Do you believe the Ninth Amendment guarantees any unenumerated rights?

If not, you are in agreement with Judge Bork.

If so, how would you suggest that such rights be identified which differs from the methods which I discussed?

I find it interesting that you claim that I have an expansive view of the Ninth Amendment which does not differ from Justice Ginsberg's. Rather, I would have thought you would have found my methodology too restrictive as I only recognize those rights which are well established in Anglo American law and do not extend the status of constitutionally guaranteed right to various modern interests in birth control, abortion, sodomy and now the redefinition of marriage, even though I personally think that laws against birth control and sodomy are counterproductive and morally wrong.

In any case, I do not understand the critique that my methodology is not originalist. The Ninth Amendment is a catchall provision which protects unenumerated rights rights shown to be deeply rooted in the tradition or history of the nation. That is as originalist as it gets. Indeed, I am employing the mainstream originalist methodology.

Self defense has been a nearly universally recognized right of the People throughout the history of Anglo American law and actually dates back to at least Roman law.

I am unaware of any case where a State or the Federal Government has attempted to use its police power to deny their People the right to self defense. Rather, there is actually very little disagreement about the existence and scope of that right. In a nutshell, a person may use proportional force to defend him or herself from the acts of another.

Do you actually argue that self defense is not among our most fundamental rights as a People?
 

nice link there jpk .. it's comforting to know that folks don't have to "go out" to seek out the homocide experience ..

i'm sure there's a drive-in or a drive-by experience package available as well ..

i had a philosopher-social-thinker friend in skool who advocated that everyone ought ot have to go about armed .. his theory was that in the first six week all the social misfits and billy-bad-asses would exterminate themselves .. leaving only the moderates to more peacefully go about their daily toils .. though i never agreed with the level of mahem he proposed as a matter of course .. i couldn't fault the basic underlie of his reasoning ..

i often marvel at the results of these studies concerning lethal outcomes based on gun presence .. the lead statistic is always high .. it grabs my attention hard ..until i stop and think that forks seldom kill anyone ..

electric shock is another way people experience death in the home .. possibly not homocide .. but statistically it's probably had it's cases as well ..

based on a lifetime of experience and observation during which guns have been present at some times and other times when they were not i'm struck that despite an upbringing in a rural setting where not just arms but a variety of them were readily available in the home..no one ever got shot .. nor do i know of anyone from the surrounding country side equally armed .. getting shot or experiencing homocide .. i can't even recall a close call .. and since i'm sure the events do take place i'm left to draw the conclusion that urban and surburban dwellers are careless with their firearms.. or the mahem is a function of population density .. or that nuts are drawn to the city in higher proportion ..

i've always wondered why .. when the obvious language of the 2nd has always suggested such a ruling as heller was possible and even probable ..why the forces of anti-evil didn't try to pass laws regulating ammunition .. stipulating less than lethal performance by adjusting powder charges .. outlawing bullets that mushroom and splinter .. and hydro-shock rounds .. i've never doubted as a matter of myth .. if you will .. that any laws forbidding guns would be held as unconstitutional .. on the grounds of impermissable "infringement"..

but.. i see no reason ammunition can't be restricted and regulated to achieve a safer atmosphere if we have to live with large umbers of guns present in our society .. a bullet could be strong to knock a man down and stun him .. but not strong enough to go through two walls and kill the little six year old girls asleep in her bed in the apartment across the hall ..

i think the proper route to the desired ends of the "regulators" lies in establishing rules requiring low velocity bullets for civilian use ...
 

Our founding fathers were not dumb, they had watched the nations of Europe disarm their citizens of bows and arrows, swords and many types of weapons using the excuse that the Governments armed services would protect the citizen. Soon after these confiscations of weapons, totalitarian rule soon began. They knew, I believe, that this same excuse would be used in our nation some time in the future. That is why I think the 2nd Amendment begins with the recognition that States have a right to a armed militia to protect its citizens but it continues with the having a militia is not an excuse to infringe on a citizens right to be armed.

In the 1930s was the real start to the disarming of America. Thompson submachine guns, grenades etc could be purchased by any citizen. But because Bootleg Criminal gangs were in a bloody war between themselves and police somebody came up with the idea to make owning these items illegal, which did nothing to criminals but only law abiding citizens, criminals still have machine guns and bombs today don't they. Being Armed means having a weapon that can deliver a life ending or disruption to an attack. It could be a knife, sword, gun, stun gun etc.
 

As a additional thought here. Remember not to long back in our history, criminals who were leaving prison were often given their weapons back.

Open carry and concealed weapons could be carried freely and some states even allow this today.

This has always been a RIGHT, why some think this decision by the Supreme court makes it a NEW RIGHT is beyond me. All they have done
is clarify who was intended to have the right, a STATES armed Militia or AN INDIVIDUAL.

George Washington said it best in his address to the first session of Congress:

"Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour."

It sounds like to me this is in reference to an individuals right, does it not? And just as truthful today as back then, "more than 99% of them by their silence indicate that they are in safe and sane hands".

See we have been led down a path of disarmament for some time by a group who refuses to acknowledge that every year MILLIONS of crimes are stopped by ARMED CITIZENS often never needing to fire a shot. You never hear about them in the Liberal News do you??? I wonder why??? Check it out for yourself.
 

I wonder if Washington's 99% solution would work today, say, on public transit, with passengers openly carrying guns, rifles, dirks, knives, swords, etc. Just imagine someone jumping a turnstile to avoid paying a fare: Let's get that culprit, that free rider, in our sights. Or a sudden stop, resulting in passengers bumping into each other. Or the trolley or bus driver failing to stop at your stop. This may make a fun-filled TV reality show!
 

-- Yet switchblades, one might think. are also in common use. --
.
15 USC 29 forbids interstate commerce in "switchblades," and the laws of most states forbid the bearing of same.
.
So, no, they aren't in common use.
.
The "common use" test is bogus. Especially as framed by the majority in Heller. It bootstraps an unconstitutional statutory restriction into constitutional legitimacy.
 

Our founding fathers were not dumb, they had watched the nations of Europe disarm their citizens of bows and arrows, swords and many types of weapons using the excuse that the Governments armed services would protect the citizen. Soon after these confiscations of weapons, totalitarian rule soon began.

As history, this is arrant nonsense. There were no "totalitarian" governments until the 20th C, 150 years after the Founding. The 17th C kings who claimed "divine right" may have been overweening, but they weren't "totalitarian".

George Washington said it best in his address to the first session of Congress:

"Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour."

This is a phony quote. See here.
 

Mark's link refers to this as the "liberty teeth" quote, a phony. Steve had referred to "more than 99 percent" whereas the phony "liberty teeth" quote refers to 99 and 99/100s percent. I remember as a kid the radio ads for Ivory Soap being 99 and 99/100s percent pure. Of course, such purity might not have been evident to a careless youth having his mouth washed out with Ivory Soap after coming up with a quote like this.
 

Shag, Ivory Soap was marketed as 99 and 44/100% pure, not 99/100.
 

If so, how would you suggest that such rights be identified which differs from the methods which I discussed?

Bart, I think personally that the Ninth Amendment authorizes judges to determine whether a general principle was accepted at the time of the enactment of the Constitution and whether there is a sufficient social consensus to protect rights not specifically enumerated in the Constitution. Under that conception, I agree that you can make a plausible case for some sort of right to self-defense. But then, I am not an originalist.

It seems to me that the only principled ORGINALIST stance is the one Scalia set forth in Michael H. v. Gerald D., i.e., you would have to show that the SPECIFIC right claimed in the SPECIFIC context was recognized at the time of the framing of the Constitution. I.e., anyone can say that the framers believed in a right to "privacy" or "dignity" or "self defense", but an originalist has to be able to show that the framers specifically believed that a particular type of law would not be permitted to be enacted. Thus, you would have to show that the framers INTENDED or UNDERSTOOD that tort and criminal law restrictions on self-defense would be subject to constitutional limitations.

If you don't adopt the Michael H. v. Gerald D. methodology, it ends up being really easy to justify a right to abortion under the Ninth Amendment. I don't mind that, of course, but you do.
 

Shag, Ivory Soap was marketed as 99 and 44/100% pure, not 99/100.

Either way, the soap was purer than Marilyn Chambers.
 

After being busted by Bartbuster for exaggerating by 55/100s (.0055), I guess I'll have to come clean and confess that I really used DIAL (which is L--- spelled backwards) soap in those old days.
 

This comment has been removed by the author.
 

dilan:

It seems to me that the only principled ORGINALIST stance is the one Scalia set forth in Michael H. v. Gerald D., i.e., you would have to show that the SPECIFIC right claimed in the SPECIFIC context was recognized at the time of the framing of the Constitution. I.e., anyone can say that the framers believed in a right to "privacy" or "dignity" or "self defense", but an originalist has to be able to show that the framers specifically believed that a particular type of law would not be permitted to be enacted. Thus, you would have to show that the framers INTENDED or UNDERSTOOD that tort and criminal law restrictions on self-defense would be subject to constitutional limitations.

Ypu are misreading the Michael H. v. Gerald D. holding.

1) To start, Scalia is interpreting the DPC and not the Ninth Amendment. Even so, he employs a very similar methodology to that which I use for the Ninth:

In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a "liberty" be "fundamental" (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. As we have put it, the Due Process Clause affords only those protections "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Our cases reflect "continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society. . . ." ...

What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them. Even if the law in all States had always been that the entire world could challenge the marital presumption and obtain a declaration as to who was the natural father, that would not advance Michael's claim. Thus, it is ultimately irrelevant, even for purposes of determining current social attitudes towards the alleged substantive right Michael asserts, that the present law in a number of States appears to allow the natural father - including the natural father who has not established a relationship with the child - the theoretical power to rebut the marital presumption. What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child. We are not aware of a single case, old or new, that has done so. This is not the stuff of which fundamental rights qualifying as liberty interests are made.

2) There are no requirements that the right must have existed at the time of the enactment or have been discussed by the drafters of the Constitution. Indeed, as a long time critic of legislative history as an interpretive tool, Scalia is hardly going to make it a requirement to interpret any part of the Constitution.

If you don't adopt the Michael H. v. Gerald D. methodology, it ends up being really easy to justify a right to abortion under the Ninth Amendment. I don't mind that, of course, but you do.

Self defense would and abortion would not be considered a constitutional right under either of our readings of Michael H. v. Gerald D.

Self defense was a right thoroughly established in criminal common law at the time of the enactment and ever since in both common law and statute.

Abortion was never an established tradition in Anglo American law either at the time of the enactment or at any time since then to the time of the Roe decision.
 

IANAL, but a simple google search demonstrates that Bart is incorrect: See here for a review of abortion in common law. Historically, until the technology to make abortion safe was developed, there were no proscriptions against it -- which may say something about the whole issue.

Since late-term abortion up the very late 19th century would have amounted to an elaborate and extremely unpleasant form of suicide, it makes no sense to speak of it.
 

How could anyone be fooled by that quote? People hardly spoke in terms of percentages until the 19th century.
 

Bart, you are ignoring the analysis of Scalia in Michael H. that directly bears on the conversation we are having. Look up what he says about the "level of generality" and get back to me.

And yes, Michael H. is a due process case. But Scalia is talking about when unenumerated rights should be recognized.
 

dilan:

Here is what I presume is your paragraph fromMichael H. v. Gerald D. referring to a "level of generality:"

Justice Brennan criticizes our methodology in using historical traditions specifically relating to the rights of an adulterous natural father, rather than inquiring more generally "whether parenthood is an interest that historically has received our attention and protection." We do not understand why, having rejected our focus upon the societal tradition regarding the natural father's rights vis-a-vis a child whose mother is married to another man, Justice Brennan would choose to focus instead upon parenthood." Why should the relevant category not be even more general -- perhaps "family relationships"; or "personal relationships"; or even "emotional attachments in general"? Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. If, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general. But there is such a more specific tradition, and it unqualifiedly denies protection to such a parent.

The passage deals with a methodology for deciding which one of two contradictory rights would be protected.

I do not see how this applies to self defense. There are no real competing traditions. So far as I can tell, the right is universally recognized by every State and the Federal Government.
 

c2h50h said...

IANAL, but a simple google search demonstrates that Bart is incorrect: See here for a review of abortion in common law. Historically, until the technology to make abortion safe was developed, there were no proscriptions against it -- which may say something about the whole issue.

Actually, abortions date back to ancient times. However, it is correct that our industrial society did streamline the process of death over the past century in abortion as it did in war and in death camps.

Even after technology made abortion more efficient, the act was never "deeply rooted in the tradition of the nation." Roe reversed the longstanding laws of several states and started a cultural war. This is not the stuff of fundamental rights.
 

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Article IX

Like the Right to Life?
The Right of Self-Determination?
The Right of Self-Preservation?
The Right to Love the Same Sex?
The Right to Tap Your Feet in Minneapolis Toilets?
The Right to Procure an Abortion?
The Right to Use Prophylactics?
The Right to Use Drugs?
The Right to Self-Elimination?
The Right to Privacy?

Not enumerated, therefore they do not exist. Did Roe v. Wade ever argue that a person had a Right of Autonomy? A Right over Self-Regulation?

We're not sure we have a right to habeas corpus? Newt Gingrich wants to eliminate the First Amendment? Can he?
 

Newt Gingrich wants to eliminate the First Amendment? Can he?

Well I personally will defend to the death his right to say so.
 

our industrial society did streamline the process of death over the past century in abortion

Couldn't get it more wrong. Just not possible.

For the vast majority of human history, maternal mortality, the deaths of women during pregnancy, labor, or post-partem, was the number one cause of death among women. Our industrial society reversed that over the past century.

Outside our industrial society, pregnancy and childbirth are leading causes of death in teenage girls to this day (BMJ 2004;328(7449):1152).

Our modern industrial society has made childbearing safe, saved millions of lives of mothers and children from conception through birth, and prevented millions of abortions through safe, effective contraception.

If you're feeling some nostalgia for pastoral rural life of the lamented past, existing mostly in your imagination, welcome to the real world: pregnancy and childbirth was death on a mass scale. That pesky twentieth century interfered with that. Sorry.

Here in the the real world, what we pretty much all of us want is for conception, contraception, and abortion to be safe choices, leading to wanted, healthy, children from healthy Moms. To the extent we get that, the twentieth century has something to be proud of.

But you know, if you want to go back, put reproductive health at the mercy of prescientific medicine -- hey, be my guest. I'd say your main challenge would be finding a 21st century woman who agrees. Good luck with that.
 

The passage deals with a methodology for deciding which one of two contradictory rights would be protected.

Um, Bart, I hate to tell you this, but that discussion has been the subject of about 30 law review articles, and NOBODY thinks it means that.

Since you don't trust lefty academics, you might look up what Bork says about it in "The Tempting of America". I'll give you a hint-- he agrees with me just like everyone else does about what Scalia means.

Really, this is yet another of those instances where you are once again out of your element. Scalia set off a big time jurisdictional discussion with that claim about level of generality, and you seem to not know anything about it. You must not follow jurisprudential scholarship.
 

jpk:

No one regrets that modern medicine dedicated to saving life allows only 17 of every 100,000 (0.017%) American mothers to die during pregnancy.

However, one should mourn and condemn in no uncertain terms the fact that modern technology dedicated to taking life ensures that 1.22 million of 6.39 million (19%) American children were killed in abortions during pregnancy.

What kind of society murders its children in such prodigious numbers year after year?
 

dilan:

I am not going to keep following you down your EPC substantive due process rabbit hole. Let's get back to the Ninth Amendment.

Scalia shares Bork's view of the Ninth Amendment as commentary acknowledging the existence of fundamental rights which are not enumerated in the Constitution, but does not empower the judiciary to identify and enforce those rights. In his dissent in Troxel v. Granville, 530 U.S. 57 (2000), Scalia lays out his view of the Ninth Amendment:

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

There is nothing about specificity and generality in Scalia's interpretation of the Ninth Amendment. Instead, Scalia does not believe that the Ninth Amendment grants Courts the power to enforce any right, regardless of the specificity of its pedigree.

I disagree with my favorite Justice on this subject. I believe that Scalia's fear and loathing of the judiciary adding provisions to the Constitution is overcoming his textualist instincts. The reason lawmakers place catchall provisions at the end of lists of rights or limitations is to ensure the rule of inclusio unius est exclusio alterius does not apply. The drafters' debates confirm the intent implied by the textual structure that the Bill of Rights was not meant to guarantee only the enumerated rights of the first eight amendments.

In order to avoid the judicial activism which Scalia fears, I would suggest that limiting the guarantee to those rights which are widely recognized and well established over time does the trick and satisfies the original meaning of the text of the Ninth Amendment.
 

1.22 million of 6.39 million (19%) American children were killed in abortions during pregnancy.

The mistake here of course is the assumption that prior to the twentieth century, that percentage or higher, plus their mothers, survived pregnancy, birth, childhood.

Estimates of infant and child mortality in 17th and 18-century North America show about that percentage of children died before their first birthday.

In this Nation at the dawn of the 20th century, about that percentage of children died before the age of 5.

Prior to the 20th century, the number one cause of death in women was childbirth.

The stillbirth rate alone ran 3-5% WHO data

The past century increased child death? Could not be more wrong.

It is sometimes a disadvantage to utter opinions in public on subjects one knows nothing about. One makes mistakes.
 

Larry Solum's Legal Theory Blog links to "Individual Rights Under State Bills of Rights When the Fourteenth Amendment was ratified in 1868: What Rights are Deeply Rooted in American History and Tradition?" by Steven G. Calabresi and Sarah E. Agudo, available at SSRN:

http://ssrn.com/absract=1114940

See in particular part III C. Protection of Gun Rights and Clauses Bearing on the Military beginning at page 36. (The article is 117 pages in length, triple spaced.)
 

jpk:

Previous child mortality was not the result of a conscious choice to kill off our own children. The comparison is absurd.
 

What is absurd is to pretend that the modern situation, where safe methods for terminating pregnancies exist, is somehow equivalent to a time when there was no choice, other than a nunnery, which would prevent pregnancy and its associated dangers.

Implicit in Bart's arguments is that the only proper path for women is child-bearing. This is at the root of his appeals to common law and tradition. This attitude, when coupled with a celebration of Heller, is hypocritical, given that technology has profoundly affected both the right to bear arms and the right not to bear unwanted children. To embrace one's own rights while renouncing the rights of others is the mark of a true conservative, I guess.
 

c2h50h said...

No one here is discussing denying contraception to women. Rather, the subject is whether we should be killing off our children after they have been conceived.
 

The comparison is absurd.

Really? Then why did you make it?

You're the one who brought it up.

Now that you find you're dead wrong on the facts, you opine that the comparison is absurd. Oh, I see.

It is an option to accept that the facts are simply otherwise. It's something adults do.
 

Bart,

The subject of the post was "Heller and the Constitutional Right of Self-Defense." I have no idea what you think you are "discussing", nor why you think your opinions are of interest.
 

technology has profoundly affected both the right to bear arms and the right not to bear unwanted children.

Yes, and a fact that's relevant here. Some may view 4U-486 the way others view assault weapons, but the fact remains that both are profound, they're game changers. When the law can't recognize that, problems result.
 

Re::: "the right of self-preservation and self defense."

We've heard this sort of talk before---in the late 19th and early 20th centuries.

This is natural law language.

This is hilarious--the resurrection of natural law. Natural law re-enters con. law in the year 2008.

dah
 

I am not going to keep following you down your EPC substantive due process rabbit hole. Let's get back to the Ninth Amendment.

Bart, Michael H. is not simply Scalia's test for substantive due process or equal protection (outside suspect classes). It's his test for the existence of ANY unenumerated right.

Look, it's one thing to say you "disagree" with Scalia about this, but let's make clear what that disagreement is-- Scalia requires a showing of a specific tradition because THAT IS WHAT A DEDICATION TO ORIGINAL PUBLIC MEANING ORIGINALISM DEMANDS.

If you disagree with this, fine, but it makes you a living constitutionalist, not an originalist, and I certainly can show how important the values of equality and personal dignity and autonomy were to the framers, and go from there to arguing that Roe and Casey were rightly decided. Now, you can disagree with that, but you can't make an ORIGINAL PUBLIC MEANING argument against it while at the same time contending that you don't have to go to the most specific level of generality when identifying the right of "self-defense".

Scalia is wrong, but at least he's being intellectually rigorous. You aren't.