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June 15, 2024
Recent active discussions regarding Ohio's dormant death penalty
I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State. Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.
But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio. Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is disinclined to preside over any executions while he is in office (which will be through 2026). But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:
From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"
From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""
From Spectrum News, "Gov. DeWine delays 3 more executions"
From WCMH, "Move to abolish Ohio’s death penalty renewed"
From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"
June 15, 2024 at 11:20 AM | Permalink
Comments
Mike DeWine has always been a wuss on this issue.
https://tcog.info/the-problem-with-the-courts-witch-hunt-over-the-leak-of-police-records-in-covenant-case/
So, Doug, why does society have the right to expect these reporters to show up to this kangaroo court? There is no question that the order is illegal. It's as illegal as sexual assault.
Posted by: federalist | Jun 16, 2024 8:18:38 AM
Hopefully, Utah can get off the schneid.
Posted by: federalist | Jun 16, 2024 9:44:27 AM
federalist: it seems your feelings are triggered by story you dislike, with your vague comment leaving me confused --- are you asserting that you feel society does not have a "moral right" to expect people to respond to a suspect court order or are you claiming that people have a "legal right" to use force to resist a suspect court order? (In the future, federalist, when you want to express your feelings about whatever story on the internet you find triggering, please try to be clearer as to whether you are just making a claim about your moral feelings or are making a purported claim about the law.)
I surmise you are, yet again, expressing your moral feelings. In this case, it seem that lawyers are using legal means --- through the filing of a legal motion --- to contest the legality of the suspect court order. But am I right to surmise from your other comments expressing your feelings that you may believe that persons would have a "right" to physically attack the judge in this case? Is that what you believe -- that people aggrieved by a suspect court order they view as lawless may physically attack the judge (and other court actors)? You have tellingly slinked away from discussing how your feelings apply to the Trump prosecutions, perhaps because you realize you are just describing your feelings, not the law.
There are lots of people, including you, federalist, who have sincere and strong moral feelings about what they see as flawed legal rules and applications. (Pro-life folks have sincere and strong feelings that the law allows the murder of a million+ helpless children every year.) But sincere and strong moral feelings are not the law, and the rule of law depends on people understanding the distinction between sincere and strong moral feelings and the law. And yet you seem to struggle with this every time your are triggered.
Posted by: Doug B | Jun 16, 2024 11:22:45 AM
I am just using what you said--a person has the right to resist sexual assault by a cop because it is patently illegal. Well, so is this order patently illegal. How do you distinguish between sexual assault (obviously illegal) and this order (obviously illegal)? The answer is that you cannot. And I didn't say, "Attack the judge"--but rather why does society have the right to ask these people to show up to this kangaroo court. They run the risk of being held in contempt and sentenced to time in a very dangerous jail.
This judge has chosen to ignore the law and impose limitations on fellow citizens' freedom. The law regarding judicial immunity should be ignored--she should be prosecuted, and she should spend the rest of her life in prison.
Posted by: federalist | Jun 16, 2024 11:36:59 AM
federalist: like a sober lawyer, I referenced legal rules and doctrines to explain to you why well-established SD law provide a legal basis for a person to resist unlawful (sexual) force with force. I am not aware of any legal rules or doctrines that allow resisting an unlawful court order with force. The distinction is based in law, as lawyers should understand, but people who focus on their feelings may not. You may not find this legal distinction morally compelling, but you make me question whether you really are a lawyer when you fail to be able to grasp these pretty basic legal ideas.
And you ask "does society have the right," yet again, without clarifying whether you mean moral or legal right. If we are talking about legal rights, society provides legal means to respond to a suspect court order --- eg, by filing a motion/seeking an appeal. And here we return to your own failure to think through your feelings when you defend appeal waivers or any other restrictions to court action/liability for government misdeeds. Appeals are the way society provides a law-based rememdy/response to obviously illegal court rulings (unless a federal prosecutor has bribed a defendant to give that up legal right while a defendant is spending time in a "very dangerous jail" and is at risk of spending years more in a dangerous prisons based on illegal sentencing). If you sincerely worry about actions by prosecutors and judges that are "obviously illegal," you ought ot be vigorously opposed to all efforts to reduce/restrict opportunities to seek court remeddies/appeal of these actions. (So, in addition to being against appeal waivers, you should also be against 1983/habeas restrictions and other mechanisms that serve to close courthouse doors. You also should support robust funding for defense attorneys and legal aid so that people do not go broke trying to contest obviously illegal actions. And so on.)
Try to think all this through as a lawyer, federlist, rather than based on your triggered feelings.
Posted by: Doug B | Jun 16, 2024 11:50:32 AM
You and I fundamentally disagree on the right to SD--you seem to think that it is a matter of statute/state con law only. Heller says otherwise, unless you think that a constitutional right (i.e., to keep and bear arms) is somehow dependent on the existence vel non of non-federal law allowing SD. So, according to your logic, if a state said that there is no right to use mechanical means to defend oneself that there would be no right to keep and bear arms in that state because there would be no legitimate right to use a gun to defend oneself. Additionally, under your view, a state could pass a statute restricting a person's right to fight off rape by a cop.
Posted by: federalist | Jun 16, 2024 1:13:53 PM
https://www.nationalreview.com/news/salvadoran-illegal-immigrant-charged-with-rape-murder-of-maryland-mother/
Let's prosecute Biden for this . . . . if paying one's lawyer and calling it a legal expense is illegal, then surely allowing these guys in is too and can be prosecuted.
Posted by: federalist | Jun 16, 2024 2:20:47 PM
https://lawandcrime.com/police/cop-has-ex-wife-arrested-after-she-criticized-him-on-facebook-ex-wife-sues/
Here's the story about the arrest for criticizing your cop ex-husband. Just in case you were curious--it was in Georgia, not Louisiana.
Posted by: federalist | Jun 16, 2024 2:23:50 PM
So we should prosecute a Salvadoran illegal who committed murder in Maryland and a Georgia cop, or maybe his ex-wife, in Ohio so that they'll get the death penalty, or not, because self-defense, or because unfair court orders are like rape, or because Mike DeWine is a little light in the loafers? I think I need a scorecard LOL
MAGA
Posted by: MAGA 2024 | Jun 16, 2024 3:07:46 PM
Federalist: the text of the Second Amendment does not speak to the common law/statutory right of self defense and Heller never asserts the Second Amendment should be given extra-textual meaning to provide or protect a free-standing federal constitutional right to self defense. And, of course, all of the post-Heller litigation makes that quite plain --- since it's clear even violent felons retain common law/statutory rights of self defense, even if they can be constitutionally disarmed (and the coming Rahimi ruling seems likely to further highlight that people can be lawfully and constitutionally disarmed even when they retain a common law/statutory right of self defense). Put simply, common law/statutory rights of self defense and Second Amendment rights are textually, conceptually and legally distinct (though they surely sometimes overlap and may serve some similar interests).
Critically, you have never responded at all to my devastating legal argument that there has never been a significant federal ruling --- or serious federal litigation --- suggesting that common law/statutory rights of self defense are wholly defined or even somewhat shaped by federal constitutional law. And you keep shrinking away from my suggestion that you try to write a serious brief or rigorous article making the case that SD is a federal constituional right. (When you say "You and I fundamentally disagree," what you really should say is that I am explaining to you the law as set forth in all sorts of legal doctrines and jurisprudence, whereas you are expressing your feelings without any legal support. Our "disagreement" is that I am attentive to actual sources of law, and you seem to believe your feelings matter over legal doctrines. If you do not want me to think of you as a clown, write up your claims in the rigorous way that lawyers and law professors present arguments. If you cannot or will not even try to be legally rigorous in explaining your claims, I will keep hearing clown music when I read your expression of your SD feelings.)
Speaking of "clown" claims, what do you mean by "mechanical means" to defend oneself? Some people use pepper spray, numchucks, pocket-knives, animals, cars and all sorts of other means of force in defense. The lawfulness of any form of defensive force, in general and in its particulars, is not defined by the text of the Second Amendment or the US Constitution, but rather in the specifics of common law/statutory rights. I continue to challenge you to point me to a significant case holding otherwise. Until you do, I will stop bothering to engage with your feelings clownshow.
Posted by: Doug B | Jun 16, 2024 8:17:03 PM
As for states writing laws limiting use of force against the police, I think that is not at all uncommon. A quick google search turns up this Florida law:
Section 776.051: A person is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
Are you asserting, federalist, that this statutory limit of the use of force in self defense is subject to federal constitutional challenge? Based on what provision of the US Constitution? Based on what federal constitutional caselaw?
Posted by: Doug B | Jun 16, 2024 8:30:56 PM
From Heller:
"We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home."
Regarding the "mechanical means"--I don't understand what you are talking about. If SD is purely a state-granted right, then (a) the sentence above makes no sense and (b) the Second Amendment would cease to exist in that state because, obviously, the 2A doesn't protect illegal activity.
As for the Florida statute, the "good faith" could be void for vagueness, but this statute allows self-defense against cops when they are not acting in good faith.
Here's a 20 year old article on SD and the constitution. Obviously, the abortion stuff is long-gone.
https://heinonline.org/HOL/LandingPage?handle=hein.journals/jecoplcy2&div=11&id=&page=
And you think that Rosa Parks had no right to resist . . . . I wonder how that case would turn out now ....
Posted by: federalist | Jun 17, 2024 9:17:23 AM
federalist: You are quoting Bruen, not Heller, and let's keep this simple. If I punch someone in the face at a bar because he seemed to be making a threatening move at me and my wife, can I cite the Second Amendment in a defense to state criminal assault charges and/or claim that some other provision of the US Constitution provides me with a federal constitutional defense in response to a state criminal prosecution? Can you answer that question with reference to what text of the Constitution I could raise and/or some significant legal citation(s)?
If SD is an enforceable federal constitutional right, I surely could and should be able to raise a federal constitutonal claim when being criminally prosecuted for use of force that I believed was defensive, no? Indeed, wouldn't everyone acting in claimed self defense who is subject to state prosecution --- from Kyle Rittenhouse to Daniel Perry to George Zimmerman to the Menendez Brothers to Bernie Goetz --- have a federal constitutional claim? And if they prevailed on SD after an arrest/prosecution, wouldn't they also have a viable 1983 claim against state officials for violations of their supposed federal constitutional right of self defense?
Second Amendemnt doctrine references self-defense in a manner similar to how due process doctrines reference protection of the innocent. The constitutional rights serve to help protect an underlying interest, but the scope of the constitutional right is defined primarily by the text of the Constitution, not the underlying interest.
The point of the Florida example is not its pariculars (or vagueness), it is whether it is always going to be superceded by the Second Amendment or whatever federal constitutional provision you think defines the federal constitutional right of SD. Do you claim this Florida law violates the Second Amendment (facially or as applied)? Do you claim this Florida law violates substantive Due Process or the Ninth Amendment? Please try to be lawyerly and explain the legal doctrines (and cite a case) to support your claim that the US Constitution, and not state law, controls the application of self defense in this context or any other.
The article you cite rightly starts with a case explaning the state of existing law ("no precedent establishes a constitutional right of self defense in the criminal law") and then looks to the Ninth Amendment to "discover" what the author considers an extra-textual right of self defense. I am a big fan of the Ninth Amendment, but it has not yet been interpretted to provide enforceable legal rights. Here is another article from 2017 that soundly explains your challenge: "[T]he Supreme Court has never expressly held self-defense to be a constitutional right. Instead, for most of American history, courts and commentators pared self-defense from criminal sanctions, plucked it from the common law, or sounded it from the penumbras of Due Process or the Ninth Amendment."
https://firearmslaw.duke.edu/assets/self-defense-defense-of-others-and-the-state.pdf
That's my main point to you all along, federalist. Folks on the left with abortion and other rights FEEL the US Constitution must be interpretted to protect rights not found in the text that they consider important. Likewise, you FEEL the US Constitution should be interpretted to protect SD rights not found in the text. That's fine as a statement of what you hope the Constitution might some day be interpretted to cover, but it is not in the text and there is no current precedent in any court cases --- or any serious on-going litigation --- suggesting state SD defense claims are subject to a federal constitutional overlay (in contrast, say, to every local/state restriction on speech or every local/state police investigation or every local/state senencing proceeding).
Posted by: Doug B | Jun 17, 2024 10:22:05 AM
Ok, Doug, let's keep it simple--let's say California passes a law that says that no private citizen has the right to use any force in self-defense--does anyone think that such a law would be upheld in federal court. It is unthinkable that the government can outlaw self-defense/defense of others in a free society.
And since I have the Gruen quote . . . . I think you need to deal with that quote.
Posted by: federalist | Jun 17, 2024 12:35:25 PM
federalist: I gave you a real-world example, to which you provide no answer. Game over unless and until you try to provide a cogent answer to a real-world self-defense question that arises in state and federal criminal courts every day.
Instead of providing an answer to a simple real-world question --- because it seems you have none --- you suggest an unclear hypo that raises an array of possible issues ranging from equal protection to due process (though no Second Amendment issue that I see). Tellingly, Kansas abolished the insanity defense entirely, and the Supreme Court upheld that against a due process challenge in 2020. Ohio used to put the burden of proof on a criminal defendant to prove up SD in criminal cases, and the Supreme Court upheld that against a due process challenge in 1985. Folks would surely argue that (substantive? procedural?) Due Process may prevent complete abolition of certain traditional criminal defenses, but SCOTUS has shown very little eagerness to place limits on how states run criminal prosecutions based on vague notions of due process. (Cf, OCBC in 2001 where Justice Thomas suggests federal criminal law may not include of common-law necessity defenses.)
I am not aware of any court --- state or federal --- striking down any aspect of any state's self defense law based on a due process challenge (or a Second Amendment challenge or any other constitutional provision). Can you cite to any court --- state or federal --- striking down any aspect of any state's self defense law based on a federal constitutional challenge? If SD is a federal constitutional right, as you claim, why is it never, ever litigated? That a question that you keep failing to answer, again because you obviously have no answer.
And that's what makes you seem clownish --- why is there is no shred of constitutional jurisprudence to support your claims even though there are thousands of self defense claims litigated in criminal courts every year? Why are defense attorneys failing to raise a constitutional defense that is so very obvious ... at least to the wise federalist?
If you want to say that you think federal judges can and should start interpreting the vague (substantive? procedural?) Due Process Clauses to substantively control how states can define criminal offenses/defenses and run their criminal justice systems, I'm all for the project. I'd be eager to see constitutional courts strike down possession offenses, strict criminal liability, mandatory minimums, and more robustly regulate plea bargaining as a matter of Due Process. But if you see big problems with SD law so that you'd like to see a robust new font of substantive due process emerge in that arena, please do write up your arguments for how this should be constitutionally operationalized by the federal judiciary under the DPC (or the 2A if you want to "discover" some new laws there). Until you do, I will continue to contibute your views to your (doctrine-free) feelings.
(As for Bruen, the Court seem to be trying to limit the already limited right to carry with the additional limit of the purpose for that carry right. States are allowed to require licensing for braring arms constitent with the 2A, and that language suggests that a license scheme can require someone to claim they are using the gun for self defense and they could be denied a license if they say they want a carry license because they want to be able to shoot pigeons in the park. The key point is that a violent felon or an illegal alien or a 13-year-old or Hunter Biden cannot claim their "right of self defense" in the Second Amendment gives them the right to have an arm. And, critically, the fact they can be denied an arm under the 2A does not mean they have lost their state common-law/statutory SD right. These are distinct matters, textually, conceptually, legally. I know you are smart enough to get this, federalist.)
Posted by: Doug B | Jun 17, 2024 2:34:57 PM
Yeah, well, that's just, like, your opinion, man.
Bill Otis says federalist is one of the sharpest legal minds on this blog and I for one take his word for it.
Though with all the sicko liberals here that may be damning with faint praise LOL
MAGA
Posted by: MAGA 2024 | Jun 17, 2024 2:49:26 PM
All this coming from someone who believes that appeal waivers are illegal, lol.
Doug, it is a matter of simple logic--if one of the raison d'etres (ha ha, plural) of the Second Amendment is to protect the right of SD and SD can be outlawed (if it is not a constitutional right), then a state could outlaw SD and take away 2A rights. But that isn't the case. Bruen's language presupposes a right of self-defense and says that 2A protects a means of self-defenses, ie., the carrying of firearms, presumably to use them if necessary.
So were I Zimmerman, I would have argued thusly (although Bruen hadn't been decided yet):
(1) I had a right to carry the gun (2A, Florida law).
(2) All the evidence available in the case points to the fact that (a) I was in a place I had a lawful right to be, (b) I was not acting in a threatening manner (recall that he was walking back to his car per instructions and (c) I was attacked.
(3) Under Bruen, if the right to carry is protected in order to effectuate the right of self-defense, which means that I had the right to shoot Martin, who was bashing my head into the sidewalk, thus threatening my life, and he had access to my gun, which also could have gone badly for me.
(4) This prosecution violates my rights under Bruen because my right to use my gun in self-defense, which is guaranteed by the 2A, is now burdened with a trial.
So there. The plain langauge of Bruen necessarily implies a right of self-defense which cannot be taken away by the state. The right to carry is the right to use in self-defense. That's the import of the quoted language.
Doug, this isn't hard.
Posted by: federalist | Jun 17, 2024 3:04:55 PM
federalist: your "simple logic" (also known as your feelings) do not magically establish a federal constitutional right that no court has ever found and that has never has been litigated. Constitutional rights often sit atop state law rules --- eg, state-defined liberty/property rights shape/trigger/impact due process/takings rights per the 5th/14th Amendments. I do not have a federal constitutional right to a gas-powered car, but all sorts of federal rights (statutory and constitutional) might help protect that car once a state says, as a matter of state law, that I own/have a property right in that gas car. And if the state later decides to outlaw those cars, my federal constitutional rights have not changed and the state has not "taken away" constitutional rights. Rather, the state has just changed state-based property rights.
People have the same 2A rights --- whatever SCOTUS decides those to be --- however a state decides to run its state-based criminal law. Every state has SD doctrines, and states differ on matters like fault standards, the duty to retreat/stand your ground, etc. Put another way, every state has different state-law rules as to exactly when the Zimmermans of the world can use defensive force (with a gun or other means), and those are litigated as a matter of state law. I've never seen a single case in which SD has been litigated as a matter of constitutional law. Have you? Was it litigated that way in Zimmerman? Why didn't Zimmerman bring a 1983 suit on your theory and get a big state check? Why is this never litigated? You have no answer, other than your "simple (il)logic."
You are right this isn't hard, since other lawyers get these ideas, as proven by the fact that you still cannot point to any federal constitutional litigation over self defense rights. And nobody claims that the fact middle-school kids have SD rights, then then must also have 2A right or that their lack of 2A rights means a lack of (federal constitutional?) rights to defend themselves.
Again, if you can point to any litigation, any at all --- pre-Heller or post-Heller, pre-Bruen or post-Bruen --- in which self defense has been litigated as a federal constitutional issue, I will be eager to read the litigation/caselaw. Until you do --- or seek to write up your claims with legal rigor --- all I hear is different version of your feelings-based clown music.
Posted by: Doug B | Jun 17, 2024 4:53:52 PM
Doug,
Your view of appeal waivers is no less “emotional” than federalist’s view of SD.
Posted by: TarlsQtr | Jun 17, 2024 5:08:34 PM
I largely concur, Master Tarls, that I have a view of sentencing appeal waivers that is based in my "feelings" about the statutory text and policy of the SRA. But I still see some big differences:
--- I can point to actual text enacted by Congress to support my statutory claims, as the start of 18 USC 3742 plainly states "(a) Appeal by a Defendant.—A defendant may file a notice of appeal in the district court for review of an otherwise final sentence..." I keep asking federalist to point to any text in the US Constitution to support his claims, and I am still waiting.
--- I lament that the litigation in lower courts on the sentencing appeal waiver issue has been resolved incorrectly. I keep asking federalist to point to any litigation whatsoever concerning the constitutional SD right that he claims is clear, and I am still waiting.
--- I do not believe there is some non-textual (vague) federal constitutional right to appeal a sentence that applies nationwide and protects everyone, even though there is a long-standing common-law and statutory tradition of appeals and review of criminal sentences. federalist is asserting there is some non-textual (vague) federal constitutional right to self defense (that somehow never gets litigated).
Again, Master Tarls, I concur that I am among lots of folks to have feelings about litigation that does not fit their vision of sound laws. Bill, for example, seems to have strong feelings about Miranda still being the law of the land, and I have strong feelings about acquitted conduct. But these are matters of actual legal dispute in actual cases. I truly would love to read about cases considering federalist's feelings about self defense as a federal constitutional right, but I cannot find any. Can you?
Posted by: Doug B | Jun 17, 2024 5:26:29 PM
MAGA --
"Bill Otis says federalist is one of the sharpest legal minds on this blog and I for one take his word for it."
You don't need to take my word for it. Read the other comments.
I have my own disagreements with federalist, but he takes law and the idea of law seriously, which by itself puts him in the top quarter.
Posted by: Bill Otis | Jun 17, 2024 6:33:10 PM
Doug --
Your quotation from the text is right but your interpretation of what it means isn't. As you note, it says, "(a) Appeal by a Defendant.—A defendant may file a notice of appeal in the district court for review of an otherwise final sentence..."
If the language were, "must file a notice of appeal..." you would be right. But by saying "may" rather than "must," Congress made clear its intent that it's the defendant's choice. If the defendant chooses to give up (his almost certainly vain) right to appeal in favor of stuff he views as more valuable to him, there is no reason in law or equity that he should be barred from making that choice. And if Congress changes its mind and wants to make appeals mandatory, it can do so any ole' time.
Posted by: Bill Otis | Jun 17, 2024 6:42:00 PM
Bill: Always nice to hear from you. Before we get back to our waiver discussions, I'd welcome your views on federalist's notion that killers like the Menendez brothers are asserting a federal constitutional right when they claim they used force in defense. You were a federal appellate lawyer for years, and so you may be able to do what federalist seemingly cannot, namely cite to litigation over a supposed federal constitutional right to self defense. You often rail about defense attorneys raising all sorts of (frivolous?) claims in efforts to defend murderers. Did you come across many (any?) defense attorneys raising this kind of claim of constitutional right? Are you aware of any 1983 litigation based on the alleged violation of this supposed federal constitutional right? Just curious if you have any idea what federalist is talking about.
As for sentencing appeal waivers, defendants also have a consitutional right not to be sentenced to a longer prison term on the basis of race. Could prosecutors invent a plea agreement expressly stating defendants waive their rights not to be sentenced on the basis of race? I think such an agreement would/should be unenforceable. But an appeal waiver insulates not only potential race-based sentencing, but all other potential sentencing errors Congress wanted reviewed as evidenced in the text it enacted in 18 USC 3742.
Notably the language Congress enacted in 3742(a) does not say "A defendant may file a notice of appeal UNLESS federal prosecutors write a certain kind of plea agreement in which case a defendant MAY NOT file a notice of appeal." Congress did expressly detail in 3742(c) just when and how certain kinds of "Plea Agreements" can be used to limit sentencing appeals. But you and others at DOJ have not been content with the legal means Congress set forth in statute to limit sentencing appeal rights, so you functionally rewrote the law to circumvent/restrict the appeal authority Congress enacted into the statutory text. Again, I know you like the policy of the work-around that you invented because you think sentencing appeals are "almost certainly vain." But that's not the view of Congress as reflected in the text enacted in the US Code.
I thought we are all textualists now, but we see yet again in multiple settings how folks readily elevate their policy views above legal text when motivated to invent/modify law more to their liking. I guess democracy really is for suckers when bureaucrats and/or judges can invent law that suits policy preferences other ways.
Posted by: Doug B | Jun 17, 2024 9:07:16 PM
Doug --
Just a brief note for now; I'll return to this later.
"Notably the language Congress enacted in 3742(a) does not say "A defendant may file a notice of appeal UNLESS federal prosecutors write a certain kind of plea agreement in which case a defendant MAY NOT file a notice of appeal."
Those who believe as you do have had THIRTY-FOUR YEARS to present this argument to the courts of appeals. Please name even one that has accepted it.
Thirty-four years is a long time, no?
P.S. And as ever, any defendant and any defense lawyer who dislikes the waiver for any reason at all can simply tell the prosecutor to put it and the rest of his proposed deal in a relatively inaccessible area. There is no such thing as an effective appeal waiver that has not been signed by the defendant and his lawyer. Zero.
Posted by: Bill Otis | Jun 18, 2024 9:55:03 AM
"Why didn't Zimmerman bring a 1983 suit on your theory and get a big state check?"--Immunity.
My logic, to quote a movie, is undeniable. Gruen posits a right to self-defense, with the 2A protecting the right to use a deadly weapon, i.e., a gun, to engage in it. Else, the 2A would have no teeth in a state that withdrew the right to SD. It cannot be that the right to self-defense referred to in Bruen is limited to armed self-defense.
I have the quote in a SCOTUS case, and that quote has logical implications. And once we've accepted a right to SD, then it cannot be limited to non-government people.
So, Doug, hypothetical statute: 'No right to SD against a police officer." Cop sexually assaults woman; woman defends herself, and she is charged with battery. She argues that she had an inherent right to SD under US constitution. You're the judge, and she cites Bruen.
Posted by: federalist | Jun 18, 2024 10:15:29 AM
The funny thing is--I have far more support for my position than Doug has for his.
Posted by: federalist | Jun 18, 2024 12:40:48 PM
federalist: can you provide even a single case cite in "support of [your] position" or even any litigation over it? You keep wanting to present hypothetical cases, but thousands of real SD cases are litigated in courts every year. You seem to think they all involve federal constititional rights, but I have never seen a single case discussing SD as a federal constitutional right.
I have asked you over and over to provide a single real SD case discussing the federal constitutional right you claim is so clear, and all I get is clownshow talk and a line from the 2022 Bruen ruling. If you do not want me to keep thinking of you as a clown, cite ANY actual self defense cases that provide ANY support for your position that self defense is a federal constitutional right.
Circuit courts have not accepted my view that the better reading of the text of 3742(a) should categorically void all broad sentencing appeal waiver. But there are numerous cases from numerous circuits holding they are voidable in some cases --- eg, US v. Ortiz-Garcia, 665 F.3d 279 (1st Cir. 2011); US v. Woltmann, 610 F.3d 37 (2d Cir. 2010); US v. Davis, 689 F.3d 349 (4th Cir. 2012); US v. Almany, 598 F.3d 238 (6th Cir. 2010); US v. Gonzalez-Melchor 648 F.3d 959 (9th Cir. 2011) --- so there is ample support for the view that appeal waiver are at least sometimes void and unenforceable.
See that list, that's called citing cases as lawyers do to support a claim. I could provide dozens more cites that provide support for the position that sometimes sentencing appeal waivers will not be enforced. Can you provide ANY single cite --- from state or federal courts --- for your position that self defense is a federal constitutional right? Maybe Bill or Master Tarls will provide some, as I am eager to see any examples from anyone.
Posted by: Doug B | Jun 18, 2024 1:23:27 PM
Yes, Bruen. The quoted language makes it clear that the 2A is in furtherance of the right to self-defense--not whatever self-defense right is granted by a state.
As for your view that Congress has categorically barred appeal waivers is laughable.
Posted by: federalist | Jun 18, 2024 1:33:09 PM
Bruen is not a self defense case, and it does not say that self defense is a constitutional right. The clown music continues. Are you really a lawyer?
Posted by: Doug B | Jun 18, 2024 1:35:53 PM
Bruen is not a self-defense case--are you saying that the language is obiter dictum?
Bruen references a "right of self-defense"--it's up to you to argue that what the Court really meant was that SD is a right only as granted by the states. Which then, of course, would make the 2a subject to a state repealing state SD rights.
My logic is undeniable.
Posted by: federalist | Jun 18, 2024 1:44:07 PM
Well, Heller and, to a lesser extent, Ezell do.
At least in the home.
But I see SD arguments as similar to Catholic Marian dogma. Critics argue that the dogma was not created for several hundred years after her death. True enough about the when, but it was codified so late because it was just accepted up to that point. It wasn’t until it was challenged that it was put down on paper.
Were there any credible challenges in 1830 to a belief in SD? Not a lawyer or legal historian, but I doubt it. It’s a fairly recent development and these cases are just now reaching SCOTUS.
Posted by: TarlsQtr | Jun 18, 2024 2:01:25 PM
Bruen quotes Heller which uses phrases like "inherent right of self-defense" and "natural right of defense" many times, sometimes quoting other historical sources, sometimes directly. McDonald echoes these ideas and also says: "Self-defense is a basic right." Notably, nowhere is any of these discussions is any statement that self-defense is a federal constitutional right. And I am not aware of a single lower courts to have read these rulings to convert traditional common-law/statutory self-defense into a federal constitutional right. And I have never seen any pre- or post-Heller SD case discuss any aspect of SD as a matter of federal constitutional right.
As I have said before and I will say again, SD gets litigated in state criminal courts every week of every year, and yet you still cannot point to a single case discussing this supposed constitutional right. If you need a title for the article you should write, how about "The critical constitutional right the Menendez brothers and everyone else failed to raise."
But keep trying. Do not let a lack of law get in the way of your feelings.
Posted by: Doug B | Jun 18, 2024 2:10:52 PM
The problem for you Doug is that Gruen ties 2A to the right, and if there is no right (independent of state law), then the 2A can be taken away, and that just doesn't work. It's called logic. "inherent" means independent of judge-made or legislation, so . . . .
Posted by: federalist | Jun 18, 2024 2:26:05 PM
Master Tarls: I think there were multiple Ezell rulings from the 7th Circuit. Is there a particular one or particular language in those opinions that you have in mind.
Please understand, criminal law doctrines providing defenses to criminal liability often called the "right of self-defense" have been a huge part of the common law and now statutory law. I do not dispute the right in general or in its often complicated particulars. But the text of the US Constitution does not speak to any rights of defensive force, and so this would have to be an unenumerated right if it exists. Most unenumerated rights have been localed in the Due Proces Clause, but Dobbs threw some dirt on that approach. There is also the Ninth Amendment, which is where I have seen some advocate try to locate this right. But I have not seen argument that it hides within the text of the Second Amendment.
Posted by: Doug B | Jun 18, 2024 2:26:54 PM
federalist: the case is Bruen, not Gruen. And that case does not say that the 2A and SD rights are tied together. And, as I have explained repeatedly, state law takes away SD rights in all sorts of settings (eg, in Ohio, a person at fault loses their SD rights).
If 2A and SD rights are tied together, do Rahimi and children have 2A rights? Rahimi has never lost is "inherent" or statutory SD rights, nor do middle schoolers have to go without a right to self-defense. By your "logic" kids and violent felons must have a constitutional right to "keep and bear arms" under the 2A, no?
Posted by: Doug B | Jun 18, 2024 2:31:52 PM
Ha ha--Gruen is the name of an English teacher in HS. Deal with the quotes. If the 2A is there to protect the right of self-defense, as Bruen teaches, the right to self-defense necessarily has a basis outside of state law. That logic (which is part of the whole judging thing, see Dickerson v. United States (Scalia, J., dissenting)) leads to one conclusion--there is a right to self defense outside of state law, and there's only one other place to find it--the federal constitution. If it makes you feel any better, there's no right to have a printing press either in the constitution. The right of everyday people to be armed presupposes a right to use them. Well, why do people use guns? In many cases for SD. QED. The means is a right, but not the use?? You sure you're a lawyer??
As for your hypos about rights being taken away--well, yeah, you can't start a fight and then claim self-defense. And a lot of your rights can be taken away based on conduct/condition.
So once again, my hypo--California passes a law that says that you cannot hit a cop in SD and there are no constitutional provisions in the Ca Const., cop sexually assaults a woman, and she punches him in the nose--she cites Bruen--you are the judge--you toss the charge?
Posted by: federalist | Jun 18, 2024 3:33:15 PM
Doug --
I have very little experience with SD issues. Most of federal criminal law is drugs, immigration and fraud, so it tends not to come up. It's not directly in the text of the Constitution, but it might well be comprehended in the Privileges and Immunities Clause. I'm no expert in that either. Perhaps one of your students could write on it for the law review. I expect it would be fascinating.
I believe that at the time of the Founding and up to the present day, the law of SD has been uniform: A person may use deadly force in self-defense if he has an objectively reasonable belief that he is in imminent danger of grave bodily harm or death.
Here's what seems to me to be missing in this discussion. It's like the discussion I often see here of FIP statutes, a discussion that often cites Martha Stewart, i.e., a basically normal person who would only use a firearm, if ever, in actual self defense. But Martha Stewart et al. is not the problem in the real world. The problem is the drug gang enforcer with four priors who's found with a Magnum. He doesn't have it for self defense. He has it to blow the head off of a competing dealer who's trenching on his turf. The law rightly imposes punishment on him for being in possession. And I'll bet $100 here and now that, after the present Term is over, the law will CONTINUE to punish him. Any takers?
federalist asks a good question: "So, Doug, hypothetical statute: 'No right to SD against a police officer." Cop sexually assaults woman; woman defends herself, and she is charged with battery. She argues that she had an inherent right to SD under US constitution. You're the judge, and she cites Bruen."
Based on 25 years in court, the answer is that the defendant will win. I don't know on what grounds, but a prosecution like this would never be brought to start with anyway (indeed, on the facts as presented, the cop would be the defendant)
Gotta run just now. More later.
Posted by: Bill Otis | Jun 18, 2024 4:14:05 PM
federalist: the heart of your "logic" is that 2A and SD rights are tied together. So do middle-schoolers have a right to self defense? Yes or no? Do middle-schoolers have rights under the 2A? Are these right rights tied together for everyone, some people?
You keep making a bold and never-litigated claim, namely that the federal constitution protects a private citizen's "right" to kill (and use other force) another private citizen under some circumstances. If that is true, I want to better understanding what you claim to be the foundation of that right and its scope. Do I have a constitutional right to kill another who runs away when I take out a gun? How about someone insults my child? How about someone who trespasses my property at night? I could go on and on, and under state laws (and the common law) I can get various (sometimes diverse) answers to these questions.
But you keep saying these are issues of federal constitutional law, so where can I get federal constitutional answers? And these answers have to be the same in every state, right, because federal constitutional law supercedes state laws. How does your "logic" answer these questions and can you explain why these issues are litigated in state courts as state law issues and reach different outcomes. Do you believe the states have this all wrong and that there is one federal constitutional law for SD rights? Is every criminal defense lawyer is ineffective for failing to raise a federal constitutional claim on behalf of their client? Oliver Wendell Holmes, Jr., famously said “The life of the law has not been logic; it has been experience.” And experience --- or rather the lack of litigation experience --- shows you keep asserting your feelings, not actual law.
Bill, who practiced in federal courts where federal rights are litigated, has no notion of what you are talking about, though he throws out the Privileges and Immunities Clause as another place you might discover the rights you want to invest in the Constituion. But, like the Ninth Amendment, no SCOTUS ruling in modern times has given that clause enforceable meaning.
And so, we are still waiting for you to cite a single SD case in the history of our nation fully engaging with your claim that self defense is a federal constitutional right. And the clown music keeps on playing.
As for your hypo, I am happy to be appointed judge. On the facts you give, I would respond to the Bruen cite by saying that the Second Amendment only concerns the right to "keep and bear arms." Did you have a gun, miss, or are you being prosecuted for having any arms. No? Then I see not lawful basis to apply the Second Amendment to any case not involving "arms." (Maybe she should try the Fourth Amendment, where there is a clear right as against government misconduct. Not sure how a Fourth Amendment claim would cash out if a cop trespasses on my property and I send my dogs after him. But I do not think I have a right to dogs under the Second Amendment just becuase some people use dogs for home defense. And cue the clown music for the lawyer arguing Bruen for a case having nothing to do with arms.)
Posted by: Doug B. | Jun 18, 2024 5:31:13 PM
Bill stated: “ I believe that at the time of the Founding and up to the present day, the law of SD has been uniform: A person may use deadly force in self-defense if he has an objectively reasonable belief that he is in imminent danger of grave bodily harm or death.”
Doug,
I believe Bill is exactly correct. Just like Marian Dogma in the RCC, SD was seen as universal so there has been no case law making the argument. Everyone short of a full blown pacifist sees SD as much as a right as the right to breathe the air.
Posted by: TarlsQtr | Jun 18, 2024 5:31:42 PM
But Master Tarls, even if there is, say, state (constitutional) right to free speech (or to a jury trial or to all sorts of overlapping rights), state actors who benefit from these rights are always arguing that the federal constitution provides even more protection (bigger rights) than state laws. (Indeed, Chief Judge Jeff Sutton has written a couple of great books lamenting that lawyers too often make only federal constitutional arguments and ignore state constitutional claims.) That means, if there was some kind of viable enforceable federal constitutional right to self defense, defense attorneys for folks ranging from from Kyle Rittenhouse to Daniel Perry to George Zimmerman to the Menendez Brothers to Bernie Goetz to many thousands of defendants in between ought to have been raising a federal constitutional claims.
We can focus on one state-variable issue to tease this out. Some states (including Ohio now) have stand your ground laws expanding on when deadly force can be used, other states still have a duty to retreat. What is the federal constitutional standard for the supposed "constitutional right" of self defense that must, at the least, set some enforceable floor? Every other constitutional right gets litigated and litigated and litigated --- especially by defense attorneys with clients facing severe consequences, even LWOP or the death penalty. And yet none have ever even tried to claim SD is subject to federal constitutional limits? Why? What am I --- and every criminal defense lawyer to ever practice --- missing? Are they all ineffective? Should all convictions in which the attorneys failed to raise this constitutional issue be now overturned?
Posted by: Doug B | Jun 18, 2024 5:46:48 PM
federalist --
From your comments at:
Jun 17, 2024 12:35:25 PM "And since I have the Gruen quote"
Jun 18, 2024 10:15:29 AM "Gruen posits a right to self-defense,"
Jun 18, 2024 2:26:05 PM "Gruen ties 2A to the right,"
A day later, after being corrected by Doug:
Jun 18, 2024 3:33:15 PM "Ha ha--Gruen is the name of an English teacher in HS."
You win the Internet for the week!
Thank you for coming to my Bill Otis talk. Tip your waitress! MAGA
Posted by: MAGA 2024 | Jun 18, 2024 5:48:28 PM
I might add, Master Tarls, that the Declaration of Independence rightly makes much of "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." I am a big believer in the right to "pursue happiness," and I suspect few would take issue with its listing as an "unalienable right." And yet, becaase this right does not appear in the text of the US Constitution, I do not claim it to be a federal constitutional right. I also do not say that the preamble of the Constitution's refernece to the "Blessings of Liberrty" must, by "logic," necessarily mean there is a federal constitution right to the "pursuit of happiness." And if I did start making such a legal claim, I hope you would be quick to note that none of the persons litigating over marijuana law have been making such a constitutional claim.
Posted by: Doug B | Jun 18, 2024 5:58:04 PM
I guess it didnt occur to the RCC to make explicit the papal infallibility doctrine (at the First Vatican Council in 1869) after well over a thousand years of schisms and and heretical movements. You had the split wit h the Orthodox church, the Albignesian Crusade, and Luther's 95 theses all hundreds of years before.
Everybody, including all those heretics, just understood the pope to always be correct until Garibaldi came knocking?
Anyways I know of only one infallible man on Earth and it aint Francis. MAGA
Posted by: MAGA 2024 | Jun 18, 2024 6:01:24 PM
Bruen isn't that old. I would expect that these theories will start popping up in cases.
Posted by: federalist | Jun 18, 2024 6:07:47 PM
federalist: Bruen is two years old and mostly cited/quoted Heller's self defense language. Heller is 16 years old. Heller has been cited in gun cases many thousands of times, Bruen has already be litigated in hundreds (and probably thousands) of gun cases. And yet you still cannot point to --- nor seemingl can Bill or Master Tarls or anyone --- a single SD case in which a defendant claims he has a constitutional right to kill or assault someone under certain circumstances. Hmmm.
All the more reason, as I see it, for you to step up to my repeated challenge to write up your claims in a rigorous way. Many hundreds, perhaps thousands, of persons have slept on this supposed federal constitutional rights and may have been wrongfully convicted/imprisoned due to ineffective lawyering in this regard. Perhaps Brett Jones, serving mandatory LWOP in Mississippi, could get your help. He claimed self defense, at age 15, when he stabbed his "huge" grandfather after his grandfather pushed and punched at him. Here is part of his trial testimony about his effort to exercise his right of self defense:
"I was stabbing him because I was afraid, I didn't know anything else to do because he was so huge. He's not really a big looking man until he gets in your face with his hands up and swinging at you, and then he turns into a giant. And you just feel like there's no way out, no way to get away from him."
Though I have not read the whole record, I have never seen any indication that Brett's lawyers asserted that he was exercising his federal constitutional right to self defense. His case was considered by the US Supreme Court on Eighth Amendment grounds, but I surmise you would say he had a Second Amendment right/claim that was not raised. Do I have that right? Sounds like that could be a winning claim for Brett if only his lawyers had thought to brief and preserve it. But maybe you can seek to help him raise it now.
I suspect there are lots of people on death row as well as serving LWOP who would like the benefit of your constitutional wisdom. I mentioned the Menendez brothers, and I sense you could become world-famous simply by helping them bring the (never-yet- litigated) constitutional claim that you think is so clear. Why allow injustice to persist while just hoping "these theories will start popping up"? Stop wasting time with comments here linking to off-topic matters and start writing up your claims like a serious lawyer.
You always slink away from my suggestion that you try to write up your claims with lawyerly rigor, but I really think you could go to the bank on this one. And right a lot of constitutional wrongs for a whole lot of (violent) people who seemingly failed to have federal constitutional claims preserved on their behalf. Just sayin'.
Posted by: Doug B | Jun 18, 2024 8:41:12 PM
Doug, I am just taking the logical import of the words from Bruen that I quoted. Bruen protects a means of SD. Logically, if the means is protected, then the underlying end is protected, else why protect the means? The Court knows well the difference between rights granted by a state that then implicate (usually, due process) the federal constitution and rights granted by the federal constitution itself. Bruen doesn't speak in terms of protecting the means to exercise rights granted by the state. The other problem with SD is that resolving the issue can often be fact-bound. Brett stabbed his grandfather because he was scared? You're gonna need a little more than that.
You seem to believe that there is no right to SD that exists outside of state law (be it common, statutory or state constitutional). If that's true, then a state could prosecute a woman defending herself against a cop (or prison guard) committing sexual assault. I don't think anyone thinks that.
And under your view of the law, if a homeowner blows away a burglar inside his home, the cops can arrest the homeowner, take him to jail, charge him with murder and subject him to the possibility of LWOP through a trial.
Posted by: federalist | Jun 19, 2024 9:16:28 AM
federalist: the First Amendment provides a means of running a newspaper, but that does not mean everyone has a federal constitutional right to run a newpaper. The Third Amendment provides a means of keeping the government from putting soldiers in a house, but that does not mean everyone has a federal constitutional right to own a house. The Fourth Amendment provides a means of (sometime) keeping the government from searching a car, but that does not mean everyone has a federal constitutional right to own a car. And so on and so on.
Of course, SD is fact-bound, as is the Fourth Amendment. But in EVERY criminal case in both state and federal courts in which the police investigate in questionable ways, competent defense lawyers will always raise a Fourth Amendment claim because that's how federal constitutional rights protecting criminal defendants function in our modern (post-incorporation) world. Thus, if there is in fact a federal constitutional right to self defense that --- in ways you still have not explained or may not understand --- could be broader that whatever state SD laws provides, any and every competent defense lawyer would want the SD "fact-bound" discussion focused on the particulars of the federal constitutional right you claim exists. But they do not, not even in states that have the most restrictive SD laws and not even in cases in which LWOP and the death penalty are in play. You still fail to explain why defense lawyers keep missing this issue and that's all the more reason why I am urging you to try to write up your feelings in a rigorous way that works through these complications (eg, is Ohio's SD law consistent with your claimed federal constitutional right? How about Florida's? Vermont's? Utah's?).
States prosecute people all the time for attacking cops and guards, and like all other criminal prosecutions, these issues get resolved based on state law with defense attorneys having a professional obligation to raise any and every federal constitutional issue that might help the defendant's defense. No defense attorney, to my knowledge, has tried (or would have a valid basis) to assert your claimed non-textual federal SD constittion right. But write this up if it is so clear. (Also, when you try to write this up, you might have to deal with the right of a woman to kill a fetus in exercise of her supposed constitutional SD right. As Bill notes, common law/state SD doctrines typically allow a person to kill another when she has a "reasonable belief that she is in imminent danger of grave bodily harm." If a pregnant woman reasonably believes a fetus poses an immediate and grave danger to her health, it would seem you think she has a federal constitutional right (under the 2A?) to kill her fetus in self defense. And, of course, under traditional defense of others, so too could a doctor have this federal constitutional right to kill a fetus, it would seem. Hope you address this important point, because it seems a clear implication of your assertion of a federal constitutional right here.)
And you are right that, under existing law, if a property owner blows away someone on his property, the cops can arrest him, take him to jail, charge him with murder and subject him to the possibility of LWOP through a trial. Happens all the time, and then self-defense gets adjudicated as a matter of state law. Here are just a few real world examples from just my very first quick google search:
https://www.nbcnews.com/news/us-news/north-carolina-homeowner-charged-killing-man-shotgun-blast-n626451
https://www.mercurynews.com/2024/06/12/homeowner-arrested-in-suspected-burglary-turned-killing-in-oakland/
https://abcnews.go.com/US/ny-man-charged-murder-shooting-woman-wrong-driveway/story?id=98655167
https://abc13.com/dushawn-caples-charged-with-murder-alleged-car-thief-killed-texas-property-protection-laws-can-you-shoot-burglars-in/14518783/
I could give you many, many, many more examples. But what you cannot give me is any indication in any of these cases --- or any other case in recent US history --- in which defense lawyers seriously claimed and/or the court seriously considered that a federal constitutional right defined the self defense issues in the case.
Law is about actual law, federalist, not your feelings and wishcasting. Can you cite any SD law/cases? Still waiting.
Posted by: Doug B | Jun 19, 2024 9:53:55 AM
Your attempts fail. Wow. The Court said that a main reason for the 2A was to effectuate the right to SD. Yes, the Third Amendment doesn't give the homeless the right to housing--it merely protects those who are homeowners from having to house soldiers. The language in Bruen doesn't say that the 2A protects SD to the extent you have SD rights.
First of all, every state in the union has statutes on self-defense, which 99 times out of 100 will suffice. Zimmerman, in my opinion, should have raised self-defense as an immunity from prosecution.
As for the cases you cite, in NY, SD doesn't encompass what that dude did, and the Oakland case is extremely troubling--you think that power is enshrined in law.?? The Texas case isn't a home burglary.
Posted by: federalist | Jun 19, 2024 10:18:17 AM
federalist: are you now claiming that (the 2A?) as a matter of federal constitutional law there is not just a substantive SD defense in a criminal trial (which is how SD works at common law), but a complete federal constitutional "immunity from prosecution"? Is that your latest feelings about how the US Constitution operates? You express your feelings in such confusing and contradictory ways, I am not sure I can keep track of all the clown music.
You also say "every state in the union has statutes on self-defense, which 99 times out of 100 will suffice." First, "suffice" in what sense? Criminal defendants lose state-law self-defense claims all the time (the Menendez bros and Daniel Perry come quickly to mind). State SD law obviously did not "suffice" for them, so why did they not raise federal constitutional claims (then or now)? And, of course, what about the 1 out of the 100 case --- where is ANY litigation over the constitutional right that you claim to be so clear? Still waiting for ANY cites to ANY actual litigation as the clown music continues.
And, of course, as I have highlighted again and again and again, state SD laws differ in many ways. If there is a federal constitutional right, there should be litigation over the federal floor for SD rights -- eg, does the federal constitutional right permit a state to have a "duty to retreat" requirement before using deadly force? Where? When? The duty to retreat has been litigated and legislated at length in Ohio (and in many other states), but nobody has ever discussed any federal constitutional floor. Why? Because it is a figment of your feelings, and you still cannot even explain the most rudimentary legal basics of your feelings. Cue clown music again.
The point of all theses cases I noted in direct refutation of your statement is NOT how the state substantive SD claim plays out under local state law. The point is that no competent lawyer has even claimed, in these cases or any other, that the defendant had a federal constitutional right to SD. You still fail to explain --- ESPECIALLY now that you seem to claim that the US Constitution provides complete immunity for some killers from any prosecution --- why defense lawyers for years and years and years and years have never been seeking federal constitutional immunity for thier clients in these and thousand upon thousands of other SD cases.
Notably, Bill and Master Tarls have failed to cite any federal constituional litigation despite decades of state law litigation over SD. And I don't expect them to try to write up your feelings in a rigorous way, as I suspect they readily realize it would be a clown show. I should probably realize you are incapable of writing up your view in a rigorous way, though I will keep asking in the hope it could stop the clown music.
Posted by: Doug B | Jun 19, 2024 11:58:58 AM
I am just looking at the language in Bruen, and using simple logic. The 2A protects the right to carry a gun. That presupposes the right to use it when faced with a need to do so for self-defense. That's independent of state law. Now that logic, flowing from the language of the Supreme Court, does necessarily imply immunity from prosecution, as rights cannot be burdened by state criminal process. Just as you cannot prosecute someone for speech, you cannot prosecute them (putting aside questions of fact) for exercising their right to SD.
But I notice that you cannot answer a simple hypo---under your view, states are free to take away ANY SD right since SD rights. if any, are, according to you, created by state law--so as a matter of logic, a state could prosecute someone who resisted a cop's sexual assault with force.
The right to SD is as old as nature.
Posted by: federalist | Jun 19, 2024 12:22:51 PM
I have explained repeatedly, federalist, that the vast majority of criminal law is excluisively a state law matter -- subject to federal constitutional limits, which are always in modern times robustly litigated. What a non-clown-show version of your "logic" might involved is a (highly denatable) claim that the US Constitution precludes (perhaps via the Due Process Clause) states from completely eliminating certain types of crminal defeenses. The Kahler case considered and rejected such a claim with respect to one classic common law defense, and this current Court seems quite disinclined to find new rights in the Due Process Clause. But even if they did, this would not be a "constituional right to self defense" that provides some unheard of federal blanket immunity from state criminal prosecution, it would be a due process right not to have certain defenses to criminal liability completely eliminated. But if so recognized, cases like Kahler and Martin v. Ohio and OCBC become very questionable, as those case suggest the common law defenses are generally not available as a matter of any consitutional right.
You are so clearly out of your depth, federalist. But, yet again, just take a moment to think thought how constitutional litigation works and why we have not seen such claims ever made. Better yet, try to write up your claims that the US constitutional (sometimes? always?) provides rights for a private individual to kill another person with immunity, and also explain how you would deal with abortion and why this does not get addressed through the supposed constituional right of self defense. Thousands of people get prosecuted despite plausible claims of self defense every year --- not to mention the hundreds of thousands getting abortions --- and many are serving LWOP or worse without having your claim of constitutional right considered or litigated. If you think this is so clear and so important, write up even just a 2-page lawyerly account of how you seem to think this all works. Can you try to do that, or are we just going to keep sticking with your feelings and claimed "logic"?
Posted by: Doug B | Jun 19, 2024 12:42:32 PM
Wow. You completely mislead here. The issue is not the right to kill with immunity (notice you still cannot answer my hypo), but the logical implications of the language in Bruen. So I would say a perfect case is Zimmerman. All the evidence in that case suggested that Zimmerman, without doing anything that could remotely be considered "provoking" from a legal standpoint, while armed was set upon by Trayvon Martin, who was bashing Z-man's head into a sidewalk. Given that they were grabbling, Zimmerman could easily fear that Martin (a) would get the gun and (b) may turn it on Zimmerman, given the violence of Martin's attack on Z-man. The prosecution burdened Z-man's right to defend himself, and thus should have been tossed.
And yes, I think Z-man was a reckless a-hole.
Posted by: federalist | Jun 19, 2024 1:10:53 PM
federalist: if you claim there is a federal constitutional right to kill in self defense that provides complete immuntity from prosecution, then the issue plainly is "the right to kill with immunity." You stated, in our discussion of your claims about SD as a federal constituional right, that Zimmerman "should have raised self-defense as an immunity from prosecution." I read that claim as statement that Zimmerman had a federal constitutional right to kill with immunity from prosecution. Isn't that what you are saying?
As I try to turn your feelings above into a legally sensible statement, it seems you believe the SD facts under Florida STATE law were so clear, Zimmerman should have been able to have his prosecution dismissed as a matter of STATE law. Zimmerman's legal team made such a claim after the presentation of the prosecution's evidence (under state law, not citing federal constitutiona law, and not claiming "immunity," but a insufficient evidence to defeat an SD claim). The trial judge denied that motion (as a matter of state law). And this all makes sense, because SD is always a matter of state law, and no set of lawyers or jurists have ever considered it to be a matter of federal constitutional law.
Meanwhile, I've answered your hypo repeatedly, noting (a) that any claim based on Bruen and the 2A would be laughable in a case not involving "arms," and (b) that judges would have to invent a never-discussed and entirely new non-textual and unclear right in order to concoct a federal constitutional defense to a state crime, which would be a move that past and current Supreme Courts have repeatedly rejected in various contexts. Again, if you think your hypo helps make your case, write up in just a page or two with the argument and the laws/cases that you would cite in support. Real lawyers do not get to tell judges that "logic" supports their claims when the text of no law and the holdings of no cases support that supposed "logic."
Justice Scalia was keen to stress that just because someone thinks a right is important, that does not mean it is protected by the US Constitution. You do not seem to understand that basic reality.
Posted by: Doug B | Jun 19, 2024 9:57:45 PM
Yeah, Doug, where is the right to direct the upbringing of one's children?
In any event, the fact remains that the Court in Bruen referred to a right of self-defense. The Court did not elaborate on the source of that right--other than to say that the 2A was adopted for that purpose. As a matter of logic (see generally Dickerson v. United States (The Man, J., dissenting)) if a core function of the 2A is to protect self-defense rights with violent means--obviously, the right to bear arms is the right to use them--then the 2A right can be rendered meaningless by a state simply choosing to repeal any SD rights it has "granted." Add on to this that self-defense is the most basic of natural rights . . . .
Yes, Z-man had an insufficiency argument (and in my personal opinion, the prosecutor prosecuting him should be disbarred) but he also has a federal constitutional argument. Under your view, the states can eliminate all SD rights.
Here's a great passage from Dickerson:
"The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether, in the light of “various circumstances,” they can be “modifi[ed]”; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. And if confessions procured in violation of Miranda are confessions “compelled” in violation of the Constitution, the post-Miranda decisions I have discussed do not make sense. The only reasoned basis for their outcome was that a violation of Miranda is not a violation of the Constitution. If, for example, as the Court acknowledges was the holding of Elstad, “the traditional ‘fruits’ doctrine developed in Fourth Amendment cases” (that the fruits of evidence obtained unconstitutionally must be excluded from trial) does not apply to the fruits of Miranda violations, ante, at 11; and if the reason for the difference is not that Miranda violations are not constitutional violations (which is plainly and flatly what Elstad said); then the Court must come up with some other explanation for the difference. (That will take quite a bit of doing, by the way, since it is not clear on the face of the Fourth Amendment that evidence obtained in violation of that guarantee must be excluded from trial, whereas it is clear on the face of the Fifth Amendment that unconstitutionally compelled confessions cannot be used.) To say simply that “unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment,” ante, at 11—12, is true but supremely unhelpful."
Posted by: federalist | Jun 21, 2024 10:21:13 AM
federalist: the takings clause is not rendered "meaningless" even though states exclusively define property rights; similarly, the 2A is not "meaningless" just because SD rights are a creature of state law. Meyer v. Nebraska, 262 U.S. 390 (1923) on child rearing --- and other efforts of find non-textual rights in the Constitution, like the right to birth control and abortion --- have always been grounded in Due Process (not 2A). That's why I keep saying that Due Process provides the only plausible basis for any aspect of your claim under prevailing law --- though SCOTUS in Dobbs suggested all the precedents here are problematic for creating a federal overlay on how states can define laws (including criminal laws) as they see fit absent a clear constitutional limit. (You might also try the 9A, though that also has no legal jurisprudence to help to date.)
I agree that SD is a common-law natural right. But that still does not make it a federal constitutional right. You sound so much like the libs that Justice Scalia always rightly attacked when saying that just because someone feels a "right" is really important does not make that right constitutionally protected. I would think you would want to own the libs, but you instead act just like one in this regard (and you do not ever realize it or grapple with how you are making the case for an abortion constitutional right).
And your quote from Justice Scalia's dissent in Dickerson is still more comical proof of how much you are out of your depth. Beyond the fact that this is a dissent, the whole point Scalia is making in his dissent is that the supposed "Miranda rights" embraced by the majority appear no where in the text of the Constitution and thus, as Scalia, explains, it is wrong to call these rights "constitutional" in any way. As he puts it, by calling something a constitutional right that is plainly not in the text, "the Court flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people."
You really should just quit while you are behind, federalist, as you are just making dumber and dumber points as you grasp as straws to express your feelings.
Posted by: Doug B | Jun 21, 2024 11:25:40 AM
"I agree that SD is a common-law natural right. But that still does not make it a federal constitutional right." What does that even mean? I am not interested in the nomenclature--what matters, Doug, is whether a state has the right to withdraw this "common law natural right." You cannot come out and say so--hence your refusal to answer the hypo. If the state cannot do so, by process of elimination, it has to be a right under the Constitution--there's only one Supremacy Clause.
And as for Dickerson, please try to keep up--I am citing Scalia's opinion for its point about logic and the law. I think I've made reference to the logic piece of Scalia's dissent at least two times in this thread. I think Scalia would agree that the right to direct the upbringing of children is protected under the federal constitution.
Posted by: federalist | Jun 21, 2024 12:07:27 PM
One can find many different definitions and accountings of common law and natural rights, federalist. Some view certain economic rights in that way, the Declaration of Independence spoke of the rights of life, liberty and the pursuit of happiness in these terms, others have spoken of a range of familial activities and property rights in these arena. Criminal law "defenses" as rights can fit into these accountings in various ways, though necessity as a right (or which SD rights are a subset) has an specially texturt history. See, e.g, Queen v. Dudley & Stephens. Political and legal philosophers have written at length on all these topics, and I could not readily articulate even a portion of the nuances.
But soder lawyers understand that legal rights turn on legal dotrines appearing in legal texts and judicial interpretations thereof. And while the Warren Court was keen to final all sorts of enforceable federal constitutional rights in all sorts of "penumbras" of the Bill or Rights, most modern judges and Justices and scholars (in part thanks to Justice Scalia's work) understand that recognition of a federal constitutional right have special dimensions. And I am not aware of any court that has ever approached SD rights as federal constitutional rights, and you still are unable to point to any court decision that has. That is really game over, notwithstanding your grasping at dicta straws.
As for Justice Scalia, the Dickerson discussion is not Scalia saying "logic" is more important to determining contitutional rights than is the text. His entire jurisprudence was about deflating judges who placed their "feelings" about the constitution above its text. Here is a good summary of his views from the start of an article:
In A Matter of Interpretation: Federal Courts and the Law, Justice Antonin Scalia criticizes the tendency of federal judges to ignore the text of the Constitution or statues and to adopt “the attitude of the common-law judge -- the mind-set that asks, ‘What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?’” He condemns their tendency to treat the Constitution as “the Living Constitution, a 'morphing' document that means, from age to age, what it ought to mean" (Scalia, p. 7). He urges judges instead to adopt a textualist approach where, in the words of Amy Gutmann, editor of the volume, their interpretations are "guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time" (Scalia, viii). https://www.cmc.edu/salvatori/publications/the-textualist-jurisprudence-of-justice-scalia
And Justice Scalia's dissent in Troxel v. Granville, throws dirt on Meye,r and here is an article about a speech he gave starting this way: "U.S. Supreme Court Justice Antonin Scalia told a law school audience on Monday that there is no U.S. constitutional right of parents to direct the education and upbringing of their children." Justice Scalia: No Constitutional Right of Parents on Children’s Education. https://www.edweek.org/education/justice-scalia-no-constitutional-right-of-parents-on-childrens-education/2015/11
Can we say "game, set, match" finally, federalist, or are you going to keep digging and throw more dirt on Justice Scalia's grave and legacy with your feelings? Can I start calling you "federalib" when you keep asserting rights are hiding in the constitution when you want them to?
Posted by: Doug B | Jun 21, 2024 12:48:04 PM
I said "I think." Wasn't sure about Scalia--he's wrong on that, and I don't think he'd support simply taking kids away. You take the logic thing way too seriously. It's an observation.
The bottom line, Doug, is that the Court recognized that the right to SD exists. The Court also said that the right to keep and bear arms serves this right. If the right is state-created, then any state could get rid of the 2a within its borders by terminating the right to SD. Well, that just cannot be as a matter of logic, and it's nonsensical to think in terms of the right to bear arms for SD if it is illegal to actually use them. So, the 2A actually nukes Scalia's "no rights other than those enumerated" since it recognizes an uncodified right of SD.
And yes, I agree that this thought process can be used to construct an argument that allows abortion. Where that founders is that abortion was illegal . . . . and also, you have to be very circumspect in saying that a right definitively falls under the rubric of liberty without being enumerated. A government that doesn't allow for SD intrudes on liberty. Of course, you could say the same thing about engaging in homosexual conduct. And you'd be right--except for the fact that there were laws against that sort of thing. So, I would argue that a state is free to impose the tyranny of outlawing homosexual and "deviant" heterosexual conduct under the Constitution. It is not free, and apparently you agree because you won't say otherwise, to take away the right of SD.
Posted by: federalist | Jun 21, 2024 1:16:40 PM
Logic thing in Dickerson . . . . it was an aside. Must chill.
Posted by: federalist | Jun 21, 2024 1:17:27 PM
federalib: Justice Scalia spent his whole career making a point that you (and lots of liberals) can't seem to or do not want to understand --- namely that lots of (not-constitutional) OTHER sources of law are absolutely essential to protecting a wide array of "rights." Scalia said repeatedly that, were he a policy maker, he might vote in favor of all sorts of rights he did not see in the US Constitution. So I suspect he would not, as a personal policy matter, "support simply taking kids away." But I am also sure, contrary to your misguided feelings, that he did not think judges should convert their strong feelings and policy views into new constitutional rights.
I get you were trying to make a side point about "logic," but you just demonstrated again how out of your depth you are in a serious conversation about constitutonal jurisprudence. And no matter how many different ways I highlight how your "logic" leads you astray, and is inconsistent with how modern constitutional jurisprudence functions, you show that your feelings are essentially impervious to sober legal reasoning. So be it, but it serves for me as a telling reminder yet again that your comments often represent federalib, fun-house feelings, not serious or sound discussion of law or legal ideas.
I surmise you are never going to try to write up your feelings here in any kind of legally rigorous ways, which is too bad for all the killers who might benefit from your effort to discover a new federal constitutional right for them to litigate. But maybe we should stick to the 2A so you can explain why you think Rahimi should have won on his gun possession 2A defense, but seemingly do not think Hunter Biden should on his 2A defense. When it comes to gun rights, it does seem like feelings are driving constitutional doctrine.
Posted by: Doug B | Jun 21, 2024 2:35:03 PM
I think that a state can restrict gun ownership based on addiction. So I don't support Hunter's case. But that is not inconsistent with opposing the taking away of rights based on an ex parte order. I would support the ability to take away the right to a gun based on a hearing, subject to an appeal in a domestic violence situation. But then why not prosecute?
Doug, I am just working off the language--sorry. It makes no sense to have the Second Amendment right to bear arms for self-defense if the right to use the gun in self-defense can be taken away. So basically, the Second Amendment is evidence that self-defense is one of those rights to which the Ninth Amendment would apply--i.e., the ability to argue that because it isn't express, it isn't a right possessed by the people. This isn't hard. You may say that other considerations override etc. etc., but you cannot deny the logic.
So, can a state take away all rights to self-defense? Can it take away the right to armed self-defense? Your arguments are based on those propositions.
Posted by: federalist | Jun 21, 2024 3:45:26 PM
Man, federalist, your partisanship and sloppy thinking take you interesting places. Interesting that you are now grasping at the Ninth Amendment. Kudos for being bright enough to realize you need a new claim to not sound so silly. But, again, no court has ever found enforceable rights in the 9A. Still, as a theory for when to discover hidden constitutional rights, that's not as crazy as your 2A assertions.
But, on the 2A front, I hope you realize there was never even a ex parte "hearing, subject to an appeal" concerning Hunter's addiction as there was for Rahimi's dangerousness. Roughly 50 million US adults struggle with an active addiction --- probably an additional 75 million are "unlawful users" of a controlled substance --- and so the federal law used to convict Hunter for possessing a gun, 922(g)(3) denies perhaps 1/4 to 1/2 of all US adults of their gun rights (and, in on version of your telling, their constitutional self defense rights).
And so here is the 2A according to federalist: a guy can repeatedly beat his girlfriend to a pulp and have a court order against him based on his dangerousness, but you think he still has a 2A right to possess a gun (and, in turn, can claim a federal constitutional right to kill her if she yells back a threat at him); but any guy who sometimes has a few too many beers while watching football, or smoked weed or takes a gummy, or who gets hooked on pain pills after back surgery loses his 2A gun rights (and, in your view, his constitutional right to self defense).
You think a state should not be allowed to take away self-defense rights due to 2A, but you now claim Congress can take 2A rights (including constitutional SD rights) because someone smokes weed or gets hooked on pain pills? Not sure I get the "logic" here, but I suppose I should I know better than to try to sort out how your partisan feeling map out. But, because I sometime wonder if you are doing satire like MAGA 2024, I really would like to see you make some effort to write up your views in a rigorous way. I always enjoy reading law review article that make me think a new way, and so would like to see you do this in a more rigorous way.
Posted by: Doug B | Jun 21, 2024 4:36:31 PM
Argh--all I said re: 9A is that the 2A may preclude the "it ain't in there" argument. All the 9a does is get rid of the expressio unius exclusion alterius argument. Try to follow.
Oh come on Doug, Hunter was addicted and a then-current heavy user of illegal drugs--nfw he should have a gun. He lied. That's enough. And please stop mischaracterizing my statements--yeah, if some boyfriend beats tar out of girlfriend, and an order results based on some kind of hearing where he has some right to be heard etc., then by all f'in means, take his guns--I am concerned with the process here. I do agree that there should be an abuse component when it comes to drugs. But come on, Hunter lied. Lied through his teeth--you don't get to do that.
I've already laid out the logic--you cannot address it, and you cannot even bring yourself to say that a state, under your view of the world, cannot take away the right to armed self-defense.
Posted by: federalist | Jun 21, 2024 5:25:58 PM
federalist, I do not understand at all what you are saying about the 9A. Are you endorsing the idea, suggested in Griswold via various opinions, that the 9th A serves to tether/house "penumbral rights of privacy and repose"? I am trying to follow, but if you think SD is a 2A right (and provides constitutional immunity), I do not see any text to support it. There is 9A text to support "other rights" distinct from "the enumeration" of 2A rights, but now you seem to disclaim locating SD rights in the 9A. I recall in the past you said the text does not matters for your claims, but that only works in clown-world courts. So, where is this constitutional SD right you claim (which you also say provides a blanket immunity for certain killings), and how should it be cited in a court if/when, say, a repeated girlfriend-abuser like Rahimi were to finally beat her to death after she says she wants to break his legs for treating her so badly?
As for Hunter, we are ONLY discussing the gun charges, and it sounds like you agree that 922(g)(3) is partially unconstitutional. I do not believe the indictment/trial turned only on part of 922(g)(3), so it seems you would support his 2A appeal on the gun charge (which is the only charge I was asking about).
And, I will try to walk you through this again, step-by-step, since it seems you are extra slow today:
1. States "take away the right to armed self-defense" all the time through a wide array of state-law limits on the right of self-defense. (Also, no state to my knowledge treats any SD claims to present a categorical immunity to prosecution.) So the 2A plainly does not create some federal constitutional right of self defense with any enforceable particulars --- nor any kind of blanket immunity for any killers --- as nobody has ever argued that all the state-based limits on self-defense are violative of federal constitutional law. (You seem to have conceded this key point, as you must given that you cannot point to any federal constitutional litigation, and this reality means you have lost this debate before it even really begins.)
2. If a state ever were to completely take away the right of self-defense, there would not be any kind of roving non-textual 2A claim to cite in a state-court prosecution for killing or assault.
3. A hypothetical defendant in a hypothetic criminal case charged in a hypothetic state that eliminated SD rights still likely would be able to present a mens rea defense and/or a necessity justification defense (which, conceptually, is a defense in which traditional SD is a partial subset, but which admits of no mistaken use of force).
4. If a state did not allow even a mens rea defense and/or a necessity justification defense, a defendant then might have a plausible claim that his prosecution violates 14th A due process. However, the prosecution would have multiple SCOTUS cases to cite against a due process claim in this criminal-law defense context (eg, Kahler, Martin, OCBC).
5. A defendant could also try a claim based in the 9th A and/or the 14th A's privileges and immunities clause, but courts would have to break new jurisprudential ground to find any new non-texual constitutional rights in those provisions.
I am not going to bother to explain this law to you yet again, federalist, because it is so clear that your feelings and view of "logic" preclude you from actually being moved by legal realities. I am glad you have enough clarity to no longer make silly claims about Justice Scalia, but consider spending your time trying to write up your 2A feelings with legal rigor rather than just keep asserting what you feel "logic" demonstrates.
Posted by: Doug B | Jun 21, 2024 6:01:13 PM
Doug, please try to address what I am actually saying. First of all, it is curious that you cannot say that, as a matter of federal constitutional law, a state cannot repeal the right to SD---your justification/mens rea--just obfuscates the question. If there is no federal right to using force for SD, then the states must be able to treat any use of force against another as a crime. Second, we have the fact that the Supreme Court has referred to a right of SD and has said that the right to bear arms is tied to that. Where the Ninth Amendment comes in is that the express reference to a right of SD may be used to counter the "expressio unius, exclusio alterius" argument that you, and possibly Scalia, would make regarding SD. Third, as I have noted, if there is a right to bear arms IS protected, then the right to use arms in self-defense must also be protected (the right to bear arms, without the right to use them, if the need for self-defense arise, makes the right to bear arms is meaningless) and under your theory, a state could render the right to bear arms meaningless by simply taking away the right to self-defense, which you have implied that a state can do.
I don't know--but this sure sounds like a legal argument to me. Note--this doesn't mean that the state cannot impose rules regarding guns or SD. And if SD is constitutionally protected, then prosecuting clear cases of SD would be unconstitutional.
And you are probably right, the 2A doesn't create the right, but it is evidence that the right was in existence as of the adopting of the 2A.
Posted by: federalist | Jun 25, 2024 11:39:52 AM
federalist: I've been saying from the get-go that "there is no federal [constitutional] right to using force for SD," and I have noted that hundreds of thousands of SD cases have been litigated that way. You have not been able to point to a single SD case in which using force has been successfully litigated as a federal constitutional right. Meanwhile, the Supreme Court has referred to a general "right of SD" similarly to how it often refers to various liberty and property rights AND even voting rights, as STATE law created rights protected in various ways by various textual provisions of the US Constitution. Your logic "sounds" good to you because you provide no legal citations to support any stage of your "logic" analysis. But a serious and rigorous legal argument is about supporting suppositions with law and relevant legal citiations.
Interestingly, in your latest (law-free) effort to unpack your feelings, you have finally reached one sound conclusion: "the 2A doesn't create the right" you claim. Glad you were finally able to figure this out, as the 2A is not about using force but about a right to keep and bear arms. Now that we have finally settled SD is not a 2A-created right, I am back to the key question I keep asking --- what part of the US Constitution are you claiming does create a federal constitutional right for a private citizen to intentionally kill another private citizen in some circumstances?
Posted by: Doug B | Jun 25, 2024 1:12:07 PM
Doug, there's always a first time. The bottom line is that I have taken a statement from a Supreme Court case that was integral to the holding used deduction to defend a position. You cannot come right out and say that a state cannot charge clear cases of SD as crime if it so legislates (and gets the state courts to go along with it).
And this is a pretty dumb thing to say: "the 2A is not about using force but about a right to keep and bear arms." The right to carry comes the right to use, else there is no right, as the right to carry is meaningless without the right to use it (i.e., use deadly force) in lawful SD. Remember, Doug, it is a Constitution we are expounding.
I don't think the Constitution creates the right to SD--it protects it.
Posted by: federalist | Jun 25, 2024 6:15:18 PM
federalist: you show your own faulty "logic" in your last statement. If the Constitution does not "create the right to SD," what does as a legal matter? (I say is the common law/state law.) Please explain what law(s) you think create the SD legal right and why, using your supposed "logic," that legal source of SD rights cannot reduce and/or remove these rights. (Relatedly, when you admit there is no SD right created by the constitution, you admit there is no constitutional SD right. Rather, you are conceding the SD right comes from some other legal source, while the constitution provides OTHER rights that may serve and function to protect this non-constitutional SD right.)
The bottom line is that you have taken a statement from a Supreme Court case to try to turn your feelings into an assertion of a constitutional right with no legal support. When pressed, you finally seemed to admit that the Second Amendment does not create a constitutional right to kill. And when I asked you, yet again, what constitutional provision does purportedly create (or protect) your supposed federal constitutional right to kill, you have no answer. Plain and simple, you are simply expounding your feelings about what you wish the Constitution means, just like many libs (and, along the way, you convinced yourself that Justice Scalia was on your side when his whole career was about trying to show the libs and others how misguided it was to indulge these kinds of feelings).
Once again, federalist, any serious lawyer can see that it is your feelings, not the Constitution, that you are expounding. As you keep shifting your position(s), your feelings get a bit closer to legal reality. And bottom line is that you should just directly admit, as you tacitly do in your final sentence, that SD rights are not federal constitutional rights.
Posted by: Doug B | Jun 25, 2024 9:55:13 PM
Argh--this is frustrating. The 2A is evidence that there is a federal constitutional right. It is one of those unenumerated rights "retained by the People". Or it is Due Process because withdrawing the ability to defend oneself is a deprivation of "life" by state action which violates DP. Assuming that SCOTUS is right that a main purpose of the 2A is self-defense, the right to bear arms is the right to use them if necessary in SD.
Once again, you are getting wrapped up in nomenclature. Clearly, you cannot assert that a state can withdraw the right to SD--and if that is the case, then the ONLY thing under our legal system that would forbid that is the federal constitution. The bottom line is that the text of the 2A protects the right to use deadly force to defend oneself. That wouldn't be a right if the state could outlaw SD. This isn't hard.
So answer the hypo: State treats all use of force against another human being as (at least) a battery--woman punches cop who is attempting to rape her and is charged with battery. She has no argument under state law--she says that the state law cannot be enforced and argues that if she were armed the 2A would have protected her because it authorizes the use of deadly force to defend oneself from rape so obviously the punch is lesser force and must be protected also. You're the judge--do you dismiss the prosecution on that basis? Remember, necessity, justification etc. are all components of state law and there is nothing in the constitution that protects those defenses. Meds rea defense isn't available--the punch was intention.
Posted by: federalist | Jun 26, 2024 9:54:14 AM
It makes a HUGE difference in application and in constitutional theory, federalist, whether you are claiming SD is (A) a federal constitutional "unenumerated right" (in the 9A?) that is enforceable against the state, or (B) a federal "Due Process" right enforceable against the state only if/when one is subject to prosecution. To my knowledge, no "Due Process" right creates any blanket immunity for any prosecution; but an 9A right might be claimed to do so. In addition, the scope and application of the right could differ greatly depending on its asserted sources and the text of the law at issue. This is not a matter of "nomenclature," but rather how the rule of law (and sober lawyers) function. I do not get to soundly assert rights in court (or to my client) by saying merely the rights are somewhere in a Constitution and/or somewhere in some code.
I have said repeatedly that states often "withdraw the right to SD." It as if you do not want to understand that, eg, fault limits, retreat rules, restrictions on using force against police, and on and on serve to "withdraw the right to SD" to all sorts of people in all sorts of settings. Meanwhile, you cannot point to a single case contesting such common withdrawal of the right to SD as a violation of the federal Constitution.
I have answered your hypo by saying I think a necessity/justification argument has to be available as a matter of federal due process. (This is critically different than traditional SD, because common-law/statutory SD law allows a complete defense even in some cases of MISTAKEN use of force. Imagine if, in your hypo, she punches (or shoots dead) not the cop who rapes her, but his partner who actually was coming to help her, but she wrongly/mistakenly believes he is also going to rape her. Under traditional SD, she has a viable SD claim even when she has intentionally punched/killed an entirely innocent cop. If you claim "traditional" SD is a federal constitutional right, you are saying people have a constitutional right to murder the innocent as long as they were reasonably mistaken as to the threat. I do not think Due Process demands a state to allow people to murder other people by mistake as a matter of right in some circumstances.)
Apart from hypos, can you address a question that I keep bringing up and that eviscerates your claims: why don't people, like the Menedez bothers, who claim they killed their parents in self-defense (with guns) argue now, say, that Bruen gives them a federal constitutional claim? Forget the silly hupos and answer this real world case: did/do the Menendez brothers have a federal constitutional right to assert when they killed their parents (and under what provision)?
Posted by: Doug B | Jun 26, 2024 11:35:46 AM
No Doug--it doesn't make a difference. The Supreme Court has said there is a right to SD. And the right to possess a gun is the right to use it when warranted. It's pretty hard to get around that. I was just adding 9A etc. as gravy. The implication Bruen is obvious to anyone. So now you are referring to another "right" in terms of the right to present a justification/necessity defense--which, to my knowledge isn't even mentioned by the Supreme Court as being a federal right (obviously, if the state chooses to allow such defenses, then it has to let them be presented where called for). And then you try to manufacture some sort of distinction based on the consequences of an act of SD. And then claim that the hypo you create is "murder." "Murder" by mistake is odd too. So if someone confronts me with a gun, and I try to wrestle it away and it goes off and kills a bystander (remember, there's causation) I could be put in jail for the rest of my life?
The Menendez brothers would have had a colorable claim--since what they recounted is evidence (i.e., they testified). However, their case was fact-driven, and factual disputes have to be resolved somehow. They would have said, "SCOTUS has stated that there is a right to SD, and the right to bear arms is meaningless without the right to use them."
Posted by: federalist | Jun 27, 2024 9:43:51 AM
federalist: no real lawyer would seriously assert that where they claim a "right" comes from --- eg, which common law cases and/or state statute and/or state constitutional provision and/or federal statute and/or federal constitutional provision ---"doesn't make a difference."
Also, what law do you claim defines "when warranted" for your supposed federal constitutional right to use deadly force to kill (and who decides this)? Do you assert killing people with guns "when warranted" is a matter of federal constitutional law given that state laws differ dramatically on this issue (as you keep ignoring) through a wide and diverse range of limits of the use of deadly force for SD?
(Meanwhile, I am plainly referencing is a procedural Due Process right in the 5th and 14th Amendment that multiple SCOTUS cases have addressed regarding the right to be able to put forward relevant evidence when subject to criminal prosecution. I would write you a detailed legal explanation if I thought you actually understood or cared about sources of actual law.)
You show again you are out of your depth because you fail to understand that people who lose their (non-frivolous) self-defense claims --- based on state law --- can frequently get convicted of murder. The Menendez brothers are an obvious example, so is Daniel Perry, so is Phillip Dean Hancock, who was executed by Oklahoma last year after his failed SD claims. I am not "manufacturing" any distinction, I am explaining how common-law/state SD law functions, but you do not seem to understand doctrines regarding "imperfect" SD functions AND how states have very different rules about how criminal law should respond to "mistaken" SD claims. Do you say this is an issue of federal constitutional law? I fear you do not even understand this question.
I really did not think you could show less legal sophistication here, but now I realize you do not even understand basic SD law as well as not understanding constitutional law and sources of law more generally. I guess I understand why you do not want to try to write up your claims more rigorously, since it seems you really do not understand anything you are talking about.
And, to try to connect these point in a way you might understand: what are the details of the federal constitutional right that you think the 2A provides when the Menendez bros claimed that killing both their parents with a Mossberg 12-gauge shotgun was "warranted"? Do you also think they had an immunity argument under the 2A as well? I realize I must be annoying by being focused on actual cases and real law, but even some law professors care about legal reality over legal fantasy.
Posted by: Doug B | Jun 27, 2024 10:06:43 AM
In this case, it really doesn't. Why? Because the Supreme Court has said that SD is a right. The Supreme Court also said that the right to bear arms serves the right to self-defense. Put two and two together and, voila, you have a right to use arms in self-defense. (It is nonsensical to argue that the 2A only guarantees the right to carry a weapon and does not protect the right to use is in appropriate circumstances.) Thus, there is a federal right to use armed self-defense, and that necessarily means that there is a generalized right UNDER THE FEDERAL CONSTITUTION. (Obviously, it's silly to say that there's a right to armed self-defense, but none other.)
I think I have addressed the factual issue issue. A court system cannot know what happened in each case. But I think that where the case for SD is clear or there is no evidence to rebut it (e.g., George Zimmerman), then the right to SD is also the right not to be prosecuted. The exact contours of this--not sure. The Menendez brothers had a claim based on 2A, but the facts were not in their favor.
Posted by: federalist | Jun 28, 2024 10:05:59 AM
I am glad you have yourself convinced of your legal gobbledygook, federalist, which is obviously aided by your lack of any real understanding of the contours of basic SD law along with not understanding constitutional law and sources of law more generally. Few lawyers strike me as less coherent than Joe Biden was last night, but you have found a way here. Since you can't engage competently with the law of SD and you keep repeating your facile "logic" without any legal support for any of your far-fetched assertions in support of, eg, the supposed constitutional right to intentionally kill with blanket immunity, we should just call this one a wrap. But if you ever find a case in the history of modern american law to support your claims, feel free to share.
Posted by: Doug B | Jun 28, 2024 11:15:29 AM
I am glad you have yourself convinced of the import of the Supreme Court's statements in Bruen, federalist
there, I fixed it for you!!!
Posted by: federalist | Jun 28, 2024 1:54:38 PM
And, as I said, federalist, if you ever find any federal cases litigating Bruen this way to construct a federal constitutional right to intentionally kill in some cases with blanket criminal immunity, please be sure to highlight them here. You excel at finding off-topic matters to flag, so I will be eager to see if you ever find any on topic law to support your feelings.
Posted by: Doug B | Jun 28, 2024 4:05:15 PM