The search for sane public policy that does not trample the right to a self defense
This post represents my thoughtful effort to create a simplified model to address the complex legal and emotional issues that have emerged from the recent Florida event “that we dare not speak its name”. That “nameless” event, and others like it have already caused a media feeding frenzy that will enormously complicate – if not make impossible, any objective, rational discussion among ALL Americans, and our elected “leaders”, on how to calibrate a sane public policy that is reconciled with our rights to an effective and “affordable” self defense. For purposes of this essay, I intend for “sane public policy” and “affordable self defense” to signify, respectively, “the means” and “the objective”. I define “affordable self defense” to mean that a would-be victim need not sacrifice his life or physical or mental health to a criminal aggressor on the one hand, or face financial ruin resulting from a criminal prosecution of his act of self defense, on the other. Of course, as with much of life, “the devil is in the details”. But please don’t read this expecting me to have any answers. All I have is reflections and questions.
I think of all laws, especially criminal laws, as “fishing nets”. These “nets” are designed to trawl the sea that is society, and harvest from it, a certain species of fish known as “criminals”.
I presume I can safely assume that ALL Americans, regardless of political stripe or color, save for perhaps the anarchists among us, agree that our government needs these “nets” to protect our society.
Hence, I also presume that we can all agree that the “problem” (i.e. “the media feeding frenzy resulting from the ‘nameless event’) is not the net. Rather, it is the size of the mesh. To those anarchists (or fence sitters) who doubt the need for the net, I hope you will soon visit Somalia; preferably by boat.
The problem (size of the mesh) with any law, civil or criminal, results from the fact that not all of the fish of the targeted species, are the same size. Hence, the net's mesh will never be perfectly sized, which is to say that public policy will never be perfectly calibrated.
The CHL laws in general, and the SYG law in particular, are still largely uncalibrated. At one end of the public policy spectrum we have "the duty to retreat" ("small mesh").and at the other, “Stand Your Ground” ("large mesh").
Sadly, on a Texas CHL forum, I recently saw a post from a member, a CHL holder, to the following tenor: “I used to be afraid of criminals. So I got a CHL. But now that I have a CHL, I’m not in less fear, I’m in twice as much fear. I used to fear criminals and I still do. But now, I also fear my government. The courts. Politicized and selective prosecution as the result of a self defense incident. Financial ruin. And possibly, even incarceration after all the rest, simply as the result of a self defense incident. So, I’m not going to carry anymore”. So, in my idealized utopian dream, “sane public policy” would/should be one in which we at least fear being wrongly prosecuted by our government less than we fear being victimized by criminals.
As has been stated elsewhere, the problem with the "duty to retreat" is that it makes it easier for the prosecutor to criminalize the behavior of a person who himself was – or was about to be – a victim of a crime. A problem with “stand your ground” is that it diminishes the prosecutor’s power, which in turn empowers the individual citizen. And of course, neither “the powers that be”, nor “the blue state people” who elected them, like this.
Toward the beginning of this essay I disclaimed that I would have any answers. And I don’t. But the “Oracle of Delphi” does. So I will close with an old lawyer’s joke.
After four years of hard work, and now with crushing debt, a bright and diligent young man graduates from law school. Before going into practice he decides to go to the Greek Island of Delphi and consult the Oracle. So he does. He climbs the mountain. With eyes averted, he says “Oh Oracle! I beseech you! I’ve invested all my parents’ retirement money in a legal education. What will it take to become successful and rich?”
The mountains thunder and a deep voice bellows: “GOOD JUDGMENT”.
The guy looks perplexed. So he asks: “Alright then. What does it take to have good judgment”?
The oracle bellows: “EXPERIENCE.”
Still confused, the guy asks: Well, smarty pants. What does it take to get experience???”
To which the oracle replies: “BAD JUDGMENT”.
So, there you have it. I will close with my favorite Teddy Roosevelt line: “Speak softly. And carry a big stick”.
I believe that many people who “carry big sticks” (i.e. concealed weapons) lack the humility and/or the maturity to “speak softly”. I also believe that there is a trace of good in every evil person and that, conversely, there is a trace of evil in all the rest of us. Although that trace evil goes by many names, one of its names is “vigilantism”.
Respectfully submitted,
VT
