Suppose a state decided "that people cornered in their homes must surrender rather than fight back"

[TPaine7]

The Seventh Circuit points the way for Illinois to subvert Heller, the Second Amendment, the 14th Amendment, human rights and common sense:

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

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

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

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

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

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

Source: http://volokh.com/ (The heading is Can Lethal Self-Defense, Even Against Threats of Death, Serious Bodily Injury, Rape, and Kidnapping, Be Made a Crime?)

You can read the ruling that Volokh quoted here: http://www.ca7.uscourts.gov/tmp/O01FGDTE.pdf

We have made progress in America lately, but we must not forget the insanity on the other side. This is what we're up against, folks. It is conceivable--even constitutionally permissible--in the minds of sitting judges on a Court of Appeals that (lethal?) self defense against murder or rape can be criminalized. And--how's this for a punchline--according to these learned jurists, making self defense a crime would defeat Heller as Heller only covers non-criminal firearms possession and use!

I hope the Supreme Court takes this personally.

[paulsby]

1. i've been reading this discussion with volokh.com

imo, the best legal analysis on the web.

my answer to your question: if that ever happened, we'd see a LOT of jury nullification :)

[baldguy]

2. You do know that Eugene Volokh is an extreme RW nutcase, right?

[TiredOldMan]

4. Doesn't matter

I think the broken clock rule applies here.

I would never go looking for trouble, but if a criminal breaks into my home and threatens my wife I will protect her no matter what. Some politician sitting behind a desk will not force me to role over and die. Lives are lost or saved in minutes and the police usually take 15 minutes or more to show up.

[TPaine7]

5. So you actually agree with the 7th Circuit?!

I disagree with him on quite a few things, but I don't only read sites that I totally agree with (as if such a site existed). But more to the point, why are you sidestepping the point of the OP?

If Cheney said that 2 + 2 = 4, would you disagree?

[DrCory]

11. Do You Believe...

That lethal self defense should be a crime in all cases?

[TheWraith]

3. That's not dissimilar to the situation in the UK.

Somebody posted a link the other day to a case over there where a man was getting stones thrown at his house and through his windows by a gang of young men.He grabbed a wooden board and ran outside to chase the kids off. The kids got away, but the police charged him with assault for having run at them with the board.

[Deadric Damodred]

9. I posted the links.

After reading about crime and punishment in the UK, I can tell you this: Here, in America, I am a law-abidding person. The worst thing on my record is a few speeding tickets, which I don't believe even show up on the kind of record they look at when doing firearm eligiblity. If I lived in the UK, I would become a piece of shit criminal of the worst kind. Why? Because it's blatantly obvious that the justice system in the UK cares more about the offenders than they do the victims. Don't believe me? Here you go:

http://www.dailymail.co.uk/news/article-381799/Let-burglars-caution-police-told.html

"Oh gee....I just commited burglary....thanks for shaking your finger at me officer!"

Edit: The UK is Tony Soprano's wet dream. He'd live like a king, and all the police would do to him is ask him to testify against any victims that dared fight back.

[Euromutt]

12. It's the Daily Mail, so treat with caution

There are certain British papers which maintain their circulation by keeping their readers outraged, if they have to "sex up" or even fabricate stories to do it. The Sun, the Mail and the Telegraph in particular should never be taken at their word. Still, the core point of the story is not implausible, at least not when we're talking about the UK.

Do note that, to be let off with a caution for a first offense, you have to admit to it, and that admission does start a criminal record, so the next time you're caught, you do count as a repeat offender. And if you don't cop to it the first time, you're not going to be let off.

Still, the primary flaw lies in the fact that most effective deterrent to crime is the perceived risk of being punished. The degree of punishment is almost immaterial, as long as the prospective offender thinks the chance of it being imposed on him is higher than the chance of not it being imposed. In other words, nobody commits a crime if they don't think they'll get away with it. But if they think they will, it doesn't matter how harsh the punishment is, because they're not going to suffer it, are they? That's why the death penalty doesn't work as a deterrent: it's only credible as a deterrent if a significant number of people contemplating a capital offense think they'll be caught and punished, but if that's a real risk, the punishment doesn't have to be very large to have effect. That is, assuming you're the kind of offender who cares about consequences, but that holds for most criminals for whom the crime isn't personal, i.e. robbers, burglars and other offenders who are primarily about the acquisition of material goods.

So here we're looking at offenders who probably have racked up quite a few offenses before they're nabbed the first time, and can then rack up a similar number before they're nabbed again. Not much deterrent effect there, that's for sure, and that in turn will increase the pressure on an already overburdened police force and criminal justice system.

[Arctic Dave]

6. "Suppose", "Our hypothetical". OH NOES!!11

Monkey flying out of peoples rear ends comes to mind.

[spin]

7. A review of the self defense laws in the U.K...

interesting read. This tidbit caught my attention:

Self-defence weapons.

The law does not recognise the concept of a "defensive weapon". You are not permitted to use an offensive weapon - even to defend yourself. You may, however, provided it constitutes reasonable force, defend yourself with an ordinary everyday object, such as keys, an umbrella or a comb, provided you have them with you for their ordinary everyday purpose.

The consequences of using excessive force.

If the Court finds that the accused has used excessive force then his defence of self defence will fail and he will be guilty of the offence charged. If he has killed the other person, supposedly in "self defence", and has been charged with murder and the Court finds that he has used excessive force, his conviction will not be reduced to manslaughter and he will be guilty of murder, provided the Court is satisfied that he intended to kill or cause serious bodily harm from which the death resulted.
http://www.bsdgb.co.uk/index.php?Information:The_Law_Relating_to_Self_Defence

[GKirk]

14. Hmmm...

you may "defend yourself with an ordinary everyday object, such as keys, an umbrella or a comb, provided you have them with you for their ordinary everyday purpose."

If this were the law in the USA a bald guy who drives a Cadillac (keyless ignition) in Arizona would be pretty well screwed when it came to defending himself. ;)

[Indy Lurker]

19. I wonder

If 6D Maglites are a big seller in the UK.

[spin]

24. I did some research on a survivalist forum...

which had a lengthy thread on self defense weapons in England.

http://www.survivalistboards.com/showthread.php?t=22030

I did see a couple mentions of a small maglite being carrying for self defense and a "torch" (which I believe is the British slang for a flashlight in the car.

An excerpt from the forum in post # 17:

I agree to an extent, but- is it worth the jail time if you’re caught prior to the event preparing? - To me it is not.
Nothing is legal in the UK if it is possessed with the intent of "self defence". You can get prosecuted for carrying a rolled up newspaper if it is intended as a self defence "weapon".
For instance, if an intruder was in your house and you hit him with a baseball bat which you had in your possession with that intention, then you are likely to be prosecuted.
But if you had a baseball bat, a base ball and a mitt that you intend/ do use for playing baseball, and you felt personally threatened by the intruder and the intruder was in your “personal space” (bedroom) then you have a far higher chance of not being prosecuted.
E.G. do have a pick axe handle, have the head as well- you just haven’t had the chance to fit it yet. - You get the idea.
The telescopic batons are illegal because they are intended as weapons, just like “combat knives” are illegal; “hunting/craft/collectors knives” are not.

I personally carry a Maglite AA for lighting when walking home at night, a ball point pen for writing with and when out in the countryside I carry a telescopic walking pole to aid me. I carry these items with these sole intentions, though who knows what I may do when presented with a new and dangerous situation?

If I so happen to be ATTACKED at any time and I fear that my life is in danger then I am permitted to use "reasonable force" to protect myself. There is a general consensus that reasonable force consists of no more than a firm shove and running as fast as your legs will carry you.

The nearest things to self defence "weapons" that are legal here are high decibel sound emitting aerosols, rape alarms and this new stuff which sprays a kind of goo which is intended to distract the assailant and stain his skin so that prosecution can take place later. – Basically they are all jokes.

This might be the future of our country. Scary.

[Euromutt]

8. Constitutional considerations aside...

... if citizens were to be deprived of the right to self-defense, and "burglars should be deterred by the criminal law rather than self help," then citizens should be able to hold the state accountable in the event they suffered property loss/damage or injury as a result of criminal law failing to deter a burglary. Warren v. District of Columbia already established that this is not the case, and Castle Rock v. Gonzales reaffirmed it.

I've said it before in this forum, but the exercise of power without concomitant responsibility/accountability is tyranny. The state can tell me I can't legally defend myself and my family the day they give each of us our very own cop, 24/7, who is responsible exclusively for keeping the assigned person safe.

[Xenotime]

13. Now you are being absurd.

Get an alarm system. But violence only creates more violence.

[Statistical]

15. Do you know where the word alarm comes from?

Hint: "to arms".

Kinda stupid to have an alarm to warn you to your non-existent arms.

Unless of course you believe those brinks commercials where the BG runs away and the defenseless housewife is suddenly protected because she is on the phone with Brinks.

Alarms are good, as are good doors, good locks, outside lighting, cutting back bushes around windows, etc.

Response time for law enforcement is still 10-15 minutes in most places even with an alarm.

[Callisto32]

20. "Alarum, " I think. n/t

[Euromutt]

22. Try "À l'arme"

I.e. "to arms" in French.

[Callisto32]

23. Probably correct, also.

I just looked it up rather than relying on my possibly shoddy memory of old word-of-the-day calendars, the definition for alarum I found is "a warning or alarm, especially a call to arms."

The etymology section on the wikipedia page states that it comes from the italian all'arme, meaning "to arms."


It seems to all say the same thing. The word that has become "alarm" in modern English comes from older words meaning "to arms."

I think this post is officially redundant, so I'll stop now.

[TPaine7]

16. So requiring citizens to submit to murder, rape, or grevious bodily

harm to themselves or their loved ones is not absurd, but calling it tyranny is?

"Violence only creates more violence" is so trite it is hard to take seriously enough to refute, but I'll force myself.

It is true that unprincipled violence often causes more unprincipled violence. But principled violence tends to peace. When murderers are forcibly taken in by the police, that is violence. It brings peace--at the very least, it takes one source of violence away from the community. When they are killed by the police (or a citizen) in necessary and appropriate defensive action, that brings even more peace--they cannot even perpetrate violence in prison.

If violence were always wrong--as your post implies--we should have no police force. If it is wrong for citizens to do violence directly, why would it be right for them to hire agents to "serve and protect" them using violence?! If violence were always wrong--like, say, rape--it would be wrong to hire it out. We cannot collectively rape--through the CIA or military operatives--can we?

Also what is the purpose of an alarm system in your scenario? In a violence free world--at least a world free of legal violence--the most an alarm could do is annoy a murderer/rapist/home invader. (If it were loud enough to hurt his ears, that would be a physical harm--violence.) He wouldn't fear the homeowners. He wouldn't fear the police. Remember there could be no legal violence as that would only lead to more violence, and more violence is bad. So when he got through raping or murdering the family--and the police if they were stupid enough to show up--the biggest consequence he would face would be ostracism by polite society. That would be a small price to pay; polite society would be a tiny group indeed.

If you would stand by and watch felons have "fun" with your family--while it was within your power to stop the abuse using violence--and if you would do so secure in the conviction that "violence only creates more violence" I pity you. If you think a law requiring you to stand by is not tyranny, you have a strange definition of the word. You may be entitled to your opinions, but unless there's been some severe miscommunication, they are not entitled the tiniest scintilla of respect.

[benEzra]

17. I have an alarm system. My wife and I are also not helpless if it goes off. (n/t)

[virginia mountainman]

21. Your wrong, Violance will STOP Violance..

[Euromutt]

25. I'd say you are.

I'm going to repeat certain points already made by TPaine7 above, but the notion that "violence begets violence" has got to be one of the most abused aphorisms in history. It strikes me as having been conceived as a caution against aggression, but for some inexplicable reason, it practically only gets used to admonish those would oppose aggression with countervailing force. And that creates an internal contradiction right there. If aggression is not met with countervailing force, the effect would be that violence does not, in fact, beget more violence. QNED.

The reality is, of course, that violence can beget any number of results. Sometimes, (aggressive) violence can beget submission. Sometimes, it can beget a violent response, which in turn may lead to a cessation of violence. For example, you may have noticed that Germany and Japan haven't gone to war with anyone in the past sixty-odd years. Heaven only knows what the world would have looked like if the Allies had been persuaded not to fight back on the basis that "violence only creates more violence."

The Rwandan genocide was brought to a halt not by hand-wringing and singing "Kumbaya," but by organized and efficient violence on the part of the Rwandan Patriotic Front, and the only reason that fighting spilled over into Zaire (now the Democratic Republic of Congo) is because French intervention allowed many of the Hutu génocidaires to escape across the border.

I spent more than three years working for the UN International Criminal Tribunal for the former Yugoslavia, and the experience taught me that, trite as it may sound, there are some people for whom the phrase "violence is the only thing they understand" holds absolutely true. The international community floundered in the former Yugoslavia for four years because it would not apply pressure to the people who were wrong (i.e. the Serbs). "What if they escalate?" was the constant refrain, which led the Serbs to rightly conclude they could get away with anything. So no violence begot more violence. Serbia's genocidal wars of nationalist aggression in Bosnia and Kosovo were brought to an end largely by the generous application of American air power.

In a more domestic criminal context, a survey of prison inmates (Wright & Rossi, 1986) found that they were generally more afraid of encountering a prospective victim with a firearm than of encountering a law enforcement officer. And as TPaine7 pointed out, if you rely on an alarm system, you're not avoiding violence; you're just subcontracting it out to the police. And as I pointed out before, the SCOTUS's rulings in Warren v. D.C. and Castle Rock, CO v. Gonzales firmly established that if the cops fail to show up, you have no redress available.

[Hoopla Phil]

27. Yeah, and women ask to be raped - It's their own fault right?

[rwheeler31]

10. We did that in Iraq .

[benEzra]

18. We did a lot of things in the War on Terrah that contradict our basic principles. (n/t)

[Hoopla Phil]

26. I think we would see a BIG resurgence in Jury Nullification.