Discussion in 'Legal' started by WrongHanded, Nov 22, 2021.
I think the use of deadly force is governed by each state. Federal law which would only concern federal property goes by escalation of force. Every briefing I've ever sat through was based on what a "reasonable person" would do.
I do not know of any other place where it is addressed in the body of the federal law that provides for such a right.
But it's important for you to remember that the federal government can only create laws in areas where the Constitution provides a power to the federal government. All other powers are reserved to the states.
If you're seeking laws that would specifically authorize folks to employ self defense, or set parameters on the exercise of self defense, don't look to the federal law, that's the wrong place to seek the answer.
According to SCOTUS, there is a natural right to self preservation
There is nothing in the Constitution; and while I haven’t reviewed all 53 Titles of the United States Code, given constitutional limitations on the legislative power of Congress, I’d be surprised to see much in federal law on the subject. Self defense is grounded in Common Law.
Could you please go into more detail about "Common Law"
§ 21. Right to bear arms.
The right of the citizens to bear arms in defense of
themselves and the State shall not be questioned.
can do, unless what you can do is an exception to what the law says you cannot do (such as carry a firearm when it's unlawful if you have a carry license or permit.)
The Second Amendment doesn't "permit the keeping and bearing of arms"; it restricts the government's infringement of the already-existing "right to keep and bear arms" (or it's supposed to, at least.) Since the concept of general self-defense wasn't in question at the time, it appears no need to address it was seen.
Common Law is the collection of generally accepted judicial opinions related to questions not addressed in statutes. It's origins date back to England in the Middle Ages, when local Justices of the Peace had to rule in disputes without the guidance of a specific Royal Decree, legislative bodies not yet existing.
A digression --
Common law is:
The foundation of our legal system is the Common Law of England as described almost 300 years ago by William Blackstone in his Commentaries on the Laws of England. A basic attribute of the system is stare decisis:
Today law in United States comes from enactments of legislative bodies, like Congress or the legislatures of the States and case law (judicial interpretation and application of legal principles). See this outline of "Basic Concepts of American Jurisprudence."
The the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution. While the parties may argue what the law is that is applicable to the case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177), "...It is emphatically the province and duty of the judicial department to say what the law is....
Thank you for taking the time to answer my question.
How about "the right to life"?
In your mind, perhaps, but Heller said differently
I think each state defines specifics of "self defense".
For California, it's under Penal Code 197 - https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=197.
"PC 197 Homicide is also justifiable when committed by any person in any of the following cases:
(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace."
Well, there's a whole lot of people, including the Founders of this country, that would disagree with that. If you disagree with the Founders, then I suggest you have another Constitutional Convention and come up with a new country, one that more suits your philosophy of humanity and your view of the world.
It's not in the Constitution; it's in the Declaration. "...certain inalienable rights...that among these (rights) is life, liberty, and the pursuit of happiness." If we have a right to life, then it is inferred that we have a right to protect that life.
As time went by the most popular of arms, the Bowie, recieved the first prohibition. In NY, the Sullivan Law flatly outlawed carry of handguns. Neither have stopped the feral from doing so, and with continuous lack of enforcement, the situation developed where the criminally inclined (and those who skirt the laws working inside a set of Big Boy rules) are armed and the law abiding remain unarmed and defenseless.
We allowed ourselves to be talked out of what was declared for our own good.
In the last 25 years, we have dramatically restored our arms back to ourselves, yet those who lost control over the issues are now battling to subdue us by other means and will act to remove them again at the first opportunity. Hence the whole point of the Rittenhouse case, which was an absolute failure on their part.
We have the inalienable right - we stupidly allow those we hire to restrict us from exercising it when needed.
It's said we get the Congress we deserve.
Does that translate to "no"?
Philosophically, does the weak defend themselves or just jump inside the strongs' mouth when they're hungry?
Heller decision is common law at the Federal level. It applies to all 50 states. It holds that the Second Amendment's rights to keep and bear arms
. From the syllabus of Heller:
"The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional."
For further discussion of the connection between the Second Amendment's protection of individual firearm ownership for the "lawful purpose of self-defense" see pages 32-47, and 56-59 of Heller.
The Declaration of Independence has no legal standing. It's a lofty-sounding work of propaganda. According to historians, even the list of complaints against the rule of King George III was grossly overstated.
The principal author of the Declaration,Thomas Jefferson, was a Deist (he believed, basically, that God set the universe in motion and then washed his hands of humanity). His words about God-given rights, therefore, were hypocritical. Even more hypocritical was his idea that "all men are created equal" since he himself was a major slaveholder. He didn't even free most of his own children with his longtime slave mistress upon his death!
Above all, the Founders were politicians. Politicians then were as dishonest as politicians today are. This never changes.
The Heller decision is not what you think it is. Historically and logically, it's a confused mess, full of nonbinding dicta. It can be cited by anyone for any thing, and indeed it has been cited by the antigunners in arguing for things such as assault weapon bans.
The only thing that Heller concretely held was that you could keep a loaded revolver at home for self defense. It left open the possibility of bans on categories of weapons, and on uses outside the home. The best that can be said for Heller is that it opened the way for other cases that will be acutely needed to clarify it.
Separate names with a comma.