self defense law

[bruce]

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

hi brian,

i understand congress cut funds for the atf to review and grant relief for people with a felony conviction to possess a gun. it seems unfair that a person who may have made a mistake when they were 19 and being convicted of a non violent felony to when the are 50 and have not been in any other trouble since to be denied the "relative" right to bear arms to defend their family and home. what is your opinion on this? do you think the constitution address's this issue?

thanks ...

[Walter Joyce]

Bruce,

You're welcome.

Walter

[Darthwing Teorist]

What did you do, Bruce?

[bruce]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

[Darthwing Teorist]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

I am not a fan of people carrying guns around. Your statement is true to a certain extent, not everybody can contain their emotions. The problem with this statement is that it can be extended to any kind of thing that gives you power over the life of others: martial arts and even driving vehicles. Now of course, vehicles are not intended as means of destruction (well, not the majority of them anyway) but martial arts have been created to harm others whatever other use they may have got later.

[bruce]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

I am not a fan of people carrying guns around. Your statement is true to a certain extent, not everybody can contain their emotions. The problem with this statement is that it can be extended to any kind of thing that gives you power over the life of others: martial arts and even driving vehicles. Now of course, vehicles are not intended as means of destruction (well, not the majority of them anyway) but martial arts have been created to harm others whatever other use they may have got later.

yeah ... it is a double edged sword. i suppose many objects can be used as a weapon but a gun is too easy and too quick. with so many relatively untrained people carrying guns in georgia and now even in more public places legally than before it seems as if a man who feels threatened may resort to using his gun instead of retreating or defending with less potential for death type of force. in a way i think it can cause people to be paranoid since you never really know who is armed. some guy may tell your wife shes a cunt and you tell him to fuck off and he pulls a gun. it ends in tears for all.

[Muad'dib]

Bruce, for the record, more useful than the statutes themselves are the cases which interpret them. Since you seem to have access to Lexis, you might want to consider going to the annotated statutes and noting that at the bottom they generally have various cases which speak to each element or prong of the tests presented in the statutes. For example, what does deadly force mean in GA?

Or what about 16-3-21 b(1)?

According to that you are not justified in the use of force if you provoke the conflict. What happens if it escalates from simple force to deadly force, and you started it at simple? In NY, even though there is no duty to retreat normally, if you start a fight and it goes deadly, you must attempt to withdraw, state your intent to withdraw, and then and only then if your opponent continues to try to inflict serious/deadly harm to you, are you justified in the use of deadly force.

While I haven't taken the bar yet, (57 days and counting), I do know that simple reading of a statute only gives you half the picture, and can create the illusion of comfort which Mr. Kennedy's and Mr. Joyce's posts were intended to dispel. You cannot rely simply on the plain reading of the statute. We are not a civil code country, our statutes are always affected by readings through case law.

[bruce]

hi zhong kui,

thanks for the idea. i know very little about how the law works and i have no illusion of comfort from reading the statute :-( just more confusion lol.
i found the link to lexsis here http://gacriminallawblog.com/2006/05/18 ... o-retreat/
i will look into some case's to try to understand better.

good luck on the bar!

[DuYiZhang]

I found it humorous, nobody saw the clip? It talks about a real case and how it was treated, if you watch more, a trial is shown and the outcome of that trial.

Pac got into a fight with two people(way bigger than him), one ran, the other scuffled with him, Pac thought it would be left as a simple scuffle and that's it, but it actually evolved into a case.

I thought it would be very relevant and useful in this case. Even though I found it quite funny and how he took it.

[Muad'dib]

I watched it and thought it was extremely relevant. There is an odd tendency for serious threads to devolve into humor, or in the case of legal threads, nitpicking. Anyone reading this might take it as a lesson though as to how easily people go with their pre-conceived notions and prejudices rather than relying on the basic facts.

[MikeC]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

Well, that's one half of the story. People think there's a gun in the picture and therefore someone is going to get shot and die. The three cases my friends have been in they were all armed with their guns. In all three cases the situation was de-escalated because my friend showed them their piece. Otherwise, they would have gotten an ass-whoopin and may have been seriously injured, or worse.

Jus sayin,

Mike C

[bruce]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

Well, that's one half of the story. People think there's a gun in the picture and therefore someone is going to get shot and die. The three cases my friends have been in they were all armed with their guns. In all three cases the situation was de-escalated because my friend showed them their piece. Otherwise, they would have gotten an ass-whoopin and may have been seriously injured, or worse.

Jus sayin,

Mike C

hi mike,

i think that reinforces my concern about people carrying guns for self defense in the usa. what if the situation had not de-escalated when your friend showed his "piece"? people that had nothing to do with any of you could have been caught in the cross fire. is it wise to show a gun like that?

[MikeC]

to add to the question about guns for self defense.

i think there is danger in people carrying guns for self defense. it seems to likely for them to be used when there may have been other options.

Well, that's one half of the story. People think there's a gun in the picture and therefore someone is going to get shot and die. The three cases my friends have been in they were all armed with their guns. In all three cases the situation was de-escalated because my friend showed them their piece. Otherwise, they would have gotten an ass-whoopin and may have been seriously injured, or worse.

Jus sayin,

Mike C

hi mike,

i think that reinforces my concern about people carrying guns for self defense in the usa. what if the situation had not de-escalated when your friend showed his "piece"? people that had nothing to do with any of you could have been caught in the cross fire. is it wise to show a gun like that?

Well, considering that I just gave you evidence that it did work, I would say yes.
And what happened if they didn't show it? I don't want to think about that one personally...

Mike