self defense law

[Joe L.]

Well, there is enough info on Taiji as a martial art out there that someone might be able to make a case for it anyway, but then you can always call John Wang as an expert witness for the defense.

Defense Atty: Mr. Wang, you are an expert in Chinese martial arts, with a background spanning XX years, including both, shu ay - jow, and tie-chee, amongst other arts. I understand you or your students have won many international tournaments, and you are a respected contributor to the Empty Flower Forum, one of the top Chinese Martial Arts forums, where you are a "Great old one", is that correct?
JW: Yes.
DA: You honor, I'd like to have Mr. Wang certified as an Expert witness.
Judge: Any objections from the prosecution?
Prosecutor: None your honor.
Judge: Duly noted, Mr. Wang is accepted as an Expert Wintness. Please proceed.
DA: Mr. Wang, what is your opinion of Taiji as a fighting art?
JW: (Laughter)
DA: What's so funny?
JW: You said Taiji and "fighting art" in the same sentence. There is no relation. No person alive can fight with taiji. They can only push people around. Can you kill someone with a push? No!

That reminds me good sir, I might have a case for you if you'd take pity on a humble martial artist who has a small court case soon. Not sure if you are in the mood to take a case yet, but its a quick one (should be considering how it's stacked in my favor), but PM me if you feel up to it.

(p.s. I'm truly sorry about the other week when I was supposed to come down. Didn't mean to make it seem like I blew you off, I didn't even come home that night, much less have my phone on me or time to go to Philly. I should have some time off come two weeks from now if you are still down to do some training/shooting the shite). Hate making it seem like I blow off friends just because I'm busy.)

[nianfong]

genital meditative? truly.

continuing dan's examination:

DA: Do you think the defendant could have punched the victim in the face hard enough to break his jaw?
JW: (laughter) is the defendant's wrist broken?
DA: what?
JW: is the defendant's wrist broken?
DA: no....
JW: then clearly not. everyone knows taichi makes you ghey.

but seriously, nice posts by the eF law crew... thanks brian for that post... it's good to know since I still live in CA. I'll do my best not to do any shuaijiao brain eating if I get in a barfight. I'll protect my opponent while I throw him, and put a knee in his face until he submits.

-Fong

[Muad'dib]

Moved to PM.

[DeusTrismegistus]

I love this argument:

"I prefer the view that the 2nd amendment exists to protect ourselves from our own government. We were established by a revolution. The founding fathers were smart men and they knew that even teh best system can become shit over time, the 2nd amendment makes since from a POV of trying to ensure the citizens have the capability to have another revolution if need arises."

The image of a band of merry men with their Glocks and Rugers standing up to the US gov't is so quaint. How very "minuteman" of you. Seriously, we can see today what armed resistance to American power looks like. IRAQ! If you read the 2nd amendment to include IEDs then the argument has weight. The fighters in Iraq have proven time and again that the gunplay gets them killed. Sniping sure, but thats not a handgun. Most of the time the guns are for use against other militias and terrorizing civilians. The fantasy that some arms you can keep in your home are going balance the coercive force that can be weilded by a major government is bizarre to me.

The fact that the guy who decked the road rager was released without chrages and molestation is very encouraging. Should the cops have just taken his word and said "OK, you can go." One umarked guy standing over a busted up bleeding guy... If you get released without charges then no-harm no-foul. If I get dusted by a goon I hope the cops don't just take his word that I was the attacker and let him go.

I include the argument to include pretty much any form of firepower. I see no reason why I shouldn't be able to own an M16 or a .50cal machine gun or why a well regulated militia could not own tanks and rockets and SAMs. Ideally citizen ran militias would exist and serve many of the same capacities as the national guard does today. However a militia shouldn't have its funding and management tied to the government in such a way as that they lose the capacity to serve the pupose of the people. Handguns have uses in military circumstances although extremely limited, however I firmly believe that it is a basic human right to defend our life and property and the lives of our fellow men and women with deadly force when appropriate. I have no remorse for someone who will steal, rape, and murder. I have no sympathy for a person who thinks that they can violate another man or womans basic rights. I am partial to social contract ideology. When you live in a society you are agreeing to abide by the laws of that society and the society infrastructure has tools to guarantee your basic rights. When you break the law and violate other people's basic rights then you break the contract and the state is no longer obligated to afford you your basic rights. This is why we can take away freedom, and property, and life with criminal punishment. A criminal should not have the right to attack me and then sue me when I defend myself, that is just fucking absurd. Same with suing people when you get hurt breaking into their house, its retarded that any judge would give someone money from a person they were attempting to rob blind because they hurt themselves in an illegal act.

The court system exists to serve the people, the government exists to serve the people. IMO it is getting out of touch with what the people want and need out of the system.

[MikeC]

Walter,

That may be correct, but is it not also unconstitutional to deny Citizens with no history or Substance Abuse, Criminal Record or Mental Defect the Right to Bear Arms?? Massachusetts is a "shall issue" state meaning that you must be allowed a permit to own or carry a weapon unless you have a disqualifying factor, and yet it is left up to the Chief of Police of each individual town to decide (on a completely arbitrary basis) whether or not they Shall Issue that permit.

Don't even get me started on this one...they've turned a Constitutional right into a permission slip. And for the record, the 2nd Amendment is an INDIVIDUAL right, it's not a right to form a militia.

Mike

[MikeC]

Here's a successful case where the defendent was able to use his gun to defend himself.

http://www.telegram.com/article/2007071 ... 00374/1052

[Muad'dib]

In a successful case he would not have been prosecuted.

[MikeC]

In a successful case he would not have been prosecuted.

Ok, a successful outcome then.

[Walter Joyce]

Great posts by Walter and Brian.
This is, as mentioned, incorrect. I don't agree with Walter's reasoning, though I think it's a fine argument. The exact interpretation of the meaning of the wording of the 2nd amendment has never gone before the Supreme Court for interpretation, which is one of the reasons we have "shall issue" and "may issue" states. (BTW, Mass is a "May Issue" state, not a "Shall Issue".) Since the wording has not had solid interpretation issued, it is up to argument exactly what is or is not Constitutional. This will change very shortly however, as the Supreme Court heard arguments regarding the restrictions on firearm possession in DC in February, and I believe the decision is expected to be issued in June.

Actually, the argument I presented is not, per se, incorrect, it is an issue yet to be decided, eh counselor?



As for Massachusetts as a "may or shall" state there is abundant case law in Massachusetts that holds there is no meaningful distinction between may and shall when interpreting a statute, regulation, or constitutional provision. If you are defining "shall issue" and "may issue" as it applies to the issuing of gun permits, I'd love to see you expand your commentary on that issue.

And MikeC, as we are friends, I'll take the bait.

Can you point to what legal authority supports your argument regarding the interpretation of the 2nd Amendment?

I mean after all, if you want to make a legal point it must be supported either by strong and clear logical argument or by some legal authority other than "because I said so." Anything in the language of the amendment or the existing case law you can point to?

[MikeC]

Great posts by Walter and Brian.
This is, as mentioned, incorrect. I don't agree with Walter's reasoning, though I think it's a fine argument. The exact interpretation of the meaning of the wording of the 2nd amendment has never gone before the Supreme Court for interpretation, which is one of the reasons we have "shall issue" and "may issue" states. (BTW, Mass is a "May Issue" state, not a "Shall Issue".) Since the wording has not had solid interpretation issued, it is up to argument exactly what is or is not Constitutional. This will change very shortly however, as the Supreme Court heard arguments regarding the restrictions on firearm possession in DC in February, and I believe the decision is expected to be issued in June.

Actually, the argument I presented is not, per se, incorrect, it is an issue yet to be decided, eh counselor?



As for Massachusetts as a "may or shall" state there is abundant case law in Massachusetts that holds there is no meaningful distinction between may and shall when interpreting a statute, regulation, or constitutional provision. If you are defining "shall issue" and "may issue" as it applies to the issuing of gun permits, I'd love to see you expand your commentary on that issue.

Well the interpretation of the law is nice, but I'm more interested in how said laws are executed differently between a 'shall' and a 'may' issue state. Take my word for it, they are different indeed.

And MikeC, as we are friends, I'll take the bait.

Can you point to what legal authority supports your argument regarding the interpretation of the 2nd Amendment?

http://www.cnsnews.com/ViewNation.asp?P ... 1221a.html

[Walter Joyce]

Mike,

I applaud your research, but I disagree that a DOJ memo is the final word on any legal issue. A DOJ memo, especially under the Bush administration, is just a pronouncement on the position the DOJ will argue in litigating a matter. It has no legal authority in and of itself and is mainly a policy statement. Despite popular perception, the DOJ is like a super powerful government law firm that represents the government in the courts on a variety of issues, both civil and criminal, and like any other law firm, it's positions are not the law, until and unless the courts agree with their position.

The current administration is notorious for writing DOJ memoranda that have no basis in the law, and in some cases have been in direct contravention of existing case law. This phenomenon has been the subject t of PBS documentaries, and has also led to the resignation of some great lawyers from the DOJ. I am not talking about leftover "liberal" lawyers from previous administrations, I'm talking about hand picked neo-con first rate legal scholars that have resigned because of DOJ legal memoranda contents on constitutional issues. These lawyers resigned when they were forced to choose between following the law as it is, or ignoring the law and toeing the party line.

Among the legal community there have also been complaints that under the current administration there has been a reliance on ideology rather than qualifications in staffing decisions. Using political criteria in making such decisions has not been a common practice historically as the business of a United States Attorneys office had been given a deference and respect and historically staffing decisions for those offices had been based on effectiveness in the court room and not ideology.

As I stated in my original post, the position I articulated is an argument based on the actual text, and I made no declarations that it is the law. As I said in subsequent posts, the law on the issue had yet to be decided by the Court. What I like about the argument I posted is that it works on interpretation of the actual text, based in an historical context, and these are commonly accepted methods of interpretation.

I know I'm not about to win any converts, especially on this board and on this issue, but I prefer actual logical argument supported by legal authority and precedent over emotional pronouncements when it comes to legal issues.

Respectfully,

WTJ

[Brian L. Kennedy]

Although I am a life long gun owner, I am also a historian of the law. As such I would point out a couple of things about the right to own guns in the US. First however I must establish my street creds as a gun owner. I own all the guns in the bed of this pickup except for the Uzi and the MAC-10, both of which the California State Legislature saw fit to take from me. Actually when they changed the law in California I could have had them grandfathered in, but I was not going to head all the way back from Taiwan to San Diego just to do that, so I told my friend who was holding the guns to just turn them into the Sheriffs Dept. The Sheriffs Dept was happy as clams that day to get, for free, two fine firearms in cherry condition from the Armory of Brian Kennedy but such is life. Anyway I bought them back in the Miami Vice days when I thought I was Sonny Crocket and truth be told the Mossberg 12ga is the one to own anyway.




And that is my shadow, taking the photo, wearing my NRA ball cap. The photo was taken in the 1980s. Now, having laid out my affinity for firearms let me say three things.

First, as I always have to remind my criminal law students, constitutional rights are not absolute. Rights are always relative. Constitutional rights are balanced by courts against other state interest or policies. So statements such as I have an absolute right to x, in the sense of a right to it in all times and places, is absurd.

Second, I fully support the (relative) right to private firearms ownership, but the U.S. Supreme Court needs to establish that (relative) right. Truth be told I have not yet got around to reading the US Supreme Courts latest opinion on the matter, (that case about how the city of Washington DC banned guns or something like that), but I suspect there has been no unequivocal, clear statement about what kinds of regulation by the states or cities is permissible or not.

Third, the gun rights advocates often start yacking about the Constitution, the Founding Fathers, how it was in the Good Old Days, back in Colonial Times, and so on. Well, they need a major fucking history lesson. Colonial governments, both before and right at the time of the American Revolution and at the time of the drafting of the US Constitution, and afterwards; did regulate firearms ownership and the right to carry firearms.

Gun control is an old part of American law. See for example this article:

Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment by ROBERT H. CHURCHILL
At:
http://www.historycooperative.org/journ ... chill.html

Let me be quick to add Churchill's research has its critics, as you can see from some of the responses to the article. But that is mostly historians arguing about the details. The broad fact remains, gun control is hardly new. My position is, it needs to be done intelligently but the issue is so emotionally loaded (oh, bad pun), that that is unlikely.

Take care,
Brian

[Darth Rock&Roll]

I think the only right you ahve to property in the US constitution is under the 5th amendment and that says that you only have the right to be compensated should teh government take your property for whatever reason.

so...in effect, that wording doesn't say you have a right to property, it says you ahve the right to be compensated when it's taken away.

so, if you build a nuke and the government takes it away, they owe you time and costs for that nuke.

[Ben]

genital meditative? truly.

continuing dan's examination:

DA: Do you think the defendant could have punched the victim in the face hard enough to break his jaw?
JW: (laughter) is the defendant's wrist broken?
DA: what?
JW: is the defendant's wrist broken?
DA: no....
JW: then clearly not. everyone knows taichi makes you ghey.

but seriously, nice posts by the eF law crew... thanks brian for that post... it's good to know since I still live in CA. I'll do my best not to do any shuaijiao brain eating if I get in a barfight. I'll protect my opponent while I throw him, and put a knee in his face until he submits.

-Fong

Thats great. I needed a good laugh today.

[Muad'dib]

Great posts by Walter and Brian.
This is, as mentioned, incorrect. I don't agree with Walter's reasoning, though I think it's a fine argument. The exact interpretation of the meaning of the wording of the 2nd amendment has never gone before the Supreme Court for interpretation, which is one of the reasons we have "shall issue" and "may issue" states. (BTW, Mass is a "May Issue" state, not a "Shall Issue".) Since the wording has not had solid interpretation issued, it is up to argument exactly what is or is not Constitutional. This will change very shortly however, as the Supreme Court heard arguments regarding the restrictions on firearm possession in DC in February, and I believe the decision is expected to be issued in June.

Actually, the argument I presented is not, per se, incorrect, it is an issue yet to be decided, eh counselor?

That was my point exactly. I think phrasing was based more on the fact that your presentation did not make it appear to be an argument but a statement. Or that's the way it seemed to me.

[
As for Massachusetts as a "may or shall" state there is abundant case law in Massachusetts that holds there is no meaningful distinction between may and shall when interpreting a statute, regulation, or constitutional provision. If you are defining "shall issue" and "may issue" as it applies to the issuing of gun permits, I'd love to see you expand your commentary on that issue.

The terms "may issue" and "shall issue" were first introduced to my vocabulary via http://www.packing.org. I belief they are commonly used however. The generally accepted definition can be found here.

http://en.wikipedia.org/wiki/Concealed_carry

These terms are not affected by Massachusetts specific interpretations of the usage of "may" versus "shall". I do not know who originated them, nor what legal training those individuals possessed.

Brian,

As I mentioned, the DC decision is due out in June, and will be the first, as I understand it, decision the court has issued directly touching on state's and other entities abilities to regulate gun ownership. (I'd check that, but my lexis access died on graduation.)