Category Archives: The Second Amendment

But He Was In MY House!

Are there legal limits in the defense of yourself and your property?

Hey, what about the one where the guy offers as an excuse for having killed someone with a shotgun, that he caught the dead guy in his garage trying to steal his drug Are there legal limits to self defense?stash? Now, this is not a case about a small amount of so-called “medicinal marijuana,” it’s a case about a rather large amount of illegal pot for sale. The homeowner was so afraid he would be “ripped off,” that he installed cameras to detect any intruders. Sure enough, he saw one on the screen one night, and then went into the garage to blow the guy away.

We have a number of discussions about ongoing developments in the law of self defense. Basically, anyone threatened by imminent physical harm is entitled to use a reasonable amount of force to prevent that harm. However, some states may require a defender to “retreat-to-the-wall” before using any deadly force. On the other hand, we’re recently familiar with states that permit a “Stand Your Ground” opportunity to a defender; reasoning that if once is in a place he’s entitled to be, he shouldn’t have to run anywhere.  Continue reading But He Was In MY House!

Great Guns! The Legality of Our Constitutional Rights

The United States Constitution Is Not Firm and Unchangeable

Before we can begin to discuss this next legal principle, we have to rid ourselves of the idea that our American Constitution, let alone the Laws that are founded upon it,  is a The United States Constitution and Gun Rightsfirm and unchangeable document.  The truth of our history is, that our Laws, and the interpretation of our Constitution, change over time; and with the spirit of the times.  That being said, it’s fair to say, that the current (and recently changed) position of our United States Supreme Court, on the proper interpretation of our Second Amendment, is that individuals do have a constitutional right to personally keep and bear firearms.

Just What Are Our Constitutional Rights?

Now, this is somewhat of a change in the relatively recent interpretation of our law.  Previously, opinions have sought to persuade that the thrust of the “right” to possess firearms, really concerned the rights of States to have militias, like the national guard; and not the rights of individual persons to own and possess guns for personal use.  Another thing that will be important to realize, is that when a right is found in the first ten amendments of the Constitution ( the “Bill of Rights”), such a”Right” will be of particular importance and strength; at least in terms of the fact that, if the “right” is going to be somewhat ignored or modified by any government, it will have to be for a  very “compelling” reason.  None of the “Rights” are so important that they can’t be changed, if there is a compelling reason for doing so.  For instance, there is no “Right” more basic, and even as sacred, as the Right of Freedom of Speech; but according to the opinion of a Supreme Court Justice, in an actual case on the subject, the First Amendment will not go so far as to protect a person who would yell “fire” in an open theater, when there would be no fire.

Is There a Limit To Our Constitutional Rights?

Our Supreme Court, just about the turn to the 20th Century, found that the sacred Right of Religious Freedom, did not extend to a right to engage in plural marriage.  Another thing to keep in mind, is the fact that, even in the case of these most important and fundamental rights, the courts and legislatures will still have the power to modify and otherwise regulate the “time, place and manner” of the exercise of these most important rights.   For instance, even local governments will be found to have the power to prevent unregulated animal sacrifice, and other burnt offerings, in the name of religious freedom.

Now, with these principles in mind, it’s now possible to conclude, that even though a right, like personal possession of a gun, is a very established and protected Constitutional Right, it will be subject to regulation.  For instance, the right to “keep and bear” a firearm, might be modified to require that the weapon not be carried as a concealed weapon; or even transported in a motor vehicle.  Perhaps the “time” of possession might prohibit possession in a court house, a church, or even outside of one’s home —- except, perhaps, on a hunting trip, for instance.  It will still be left to the courts to determine whether the possession and use of certain types and designs of firearms can be regulated.

There doesn’t seem to be much resistance to the idea that one should not be allowed to possess, let alone use, high caliber automatic weapons, like machine guns; or things like cannons and rockets; but, how many bullets can be contained in a “clip” for a semi-automatic weapon; or the caliber and velocity of certain weapons, are likely to be questions that will be commonly considered in the not too distant future.

Stand Your Ground!

There’s a lot of misinformation out there about the so-called  “Stand-Your-Ground Rule.”  A great deal of the misinformation is from the media, which should know better.

Some of the misinformation is the assertion that the “Stand-Your-Ground Rule” is one of radical and recent origin; and confined to one particular state, being the state of Florida.  However, the rule is older than our republic itself; and will be found to have been part of the English common law, that was actually adopted by the thirteen American colonies, before we even had our own Constitution.

The rule most commonly comes up in relationship to that form of self-defense, which involves the use of force in one’s defense; and most especially, the use of  “deadly force”, as opposed to “non-deadly force”.

Generally,  it’s almost universally true in our culture, that one is entitled to use that degree of reasonable force, necessary to defend one’s self  As long as the force is “reasonable” under the circumstances, the defender should be viewed as being involved in self-defense, as a privileged activity   —– but that’s just where the problem lies:    just exactly what is “reasonable” force, under a particular circumstance?

If the amount of force that is utilized by the defender is greater than the force utilized in the attack on the defender, the question might arise as to whether the force is reasonable under the circumstances; and specifically, whether the defender has become an aggressor (by the use of excessive or unreasonable force); and therefore punishable under the Law.

It could be said, that the so-called  “Stand-Your-Ground Rule”, is a contradiction of an older and more pervasive rule, known as the “Retreat Rule”.  Generally, the “Retreat-Rule” demands that one should all available means of escape, before using any force at all, in self-defense.  While it is true that the “Retreat Rule” is rare in such an extreme form; it’s equally true, that when the defensive force might become “extreme” or “deadly force,” it would be required that the defender use any reasonably available avenues of escape, to avoid serious injury,

In the final analysis, the “Stand-Your-Ground-Rule” could be said to stem from a philosophical response to the question of self-defense.  The Rule reasons, that if one is in a place where the one has a right to be, there should be no requirement to “move an inch,” in response to an unprovoked attack,  let alone, “retreat-to-the-wall.”

In deed, that is in fact the law in some jurisdictions; where one would be entitled to use injurious, and even deadly force, if it is demanded that the one must move from a place the defender merely has a right to be.

Now, and even if it is not the majority rule in the country, if a particular state should determine by a democratic vote of its legislature, that it will adopt a law such as the “Stand-Your-Ground Rule.” it would be free to do so, absent a Federal Constitutional conflict.

As far as the State of California is concerned, deadly force would be deemed unreasonable, if non-deadly force would be obviously sufficient to avert a threatened harm. Even non-deadly force would be unreasonable, if it were obviously and substantially in excess of what would be needed for the particular defense.

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