The situation you envision seems so far fetched that it really shouldn’t be a consideration, I think.
Er, while he may be a “victim” the moment he comes under attack, I think he was implying that he didn’t want to get killed by the assailant. And disabling the assailant in a situation where he still presents a threat to you isn’t just trying to kill the criminal, it’s a matter of defending yourself.
Unless you meant a situation in which you shot a running criminal, in which case I misunderstood.
“You want to kill the guy who made you a victim, but killing him won’t alter your status as a victim. It appears that you hope to co-opt the judicial system by killing the criminal yourself.”
Sure it will. The end result of his actions was that I was a victim. If the end result was that he is lying on the pavement with a bullet in him, and I have my wallet back, I’m not a victim. Instead he is a dead criminal.
As for co-opting the judicial system, I think your postulation is a part of the problem in our society today. Instead of being free to defend ourselves, we must rely on others to do it for us. Well, in this case no one was ever caught for the crime. In my opinion my shooting the perpetrator would have been an assist to the judicial system.
I agree that self-defense is only a side effect of the 2nd Amendment and not its purpose, but the Amendment also does not in any way address states’ rights. It clearly recognizes a “Right of the people”, and bars infringement of that right. It does not guarantee anything to the states.
And since everybody is still discussing the National Guard, you all should know by now (since it’s been pointed out numerous times) that the US Supreme Court ruled in Perpich v. Department of Defense that the National Guard does not belong to the States, but to the U.S. Armed Services.
That’s largely incorrect, Joe. Perpich holds that state National Guard units “belong” to both the state and federal governments. The states ordinarily control them, but the feds get to call them up to federal service per Article I, section 8, clauses 15 and 16 of the Constitution, which expressly permits federal control of those state militias.
Beef and Beer, everything I have said in this thread I have said in good faith. Even the flintlock hyperbole, the purpose of which was to point out–as I said above–“they’re not exactly the most practical criminal-stopping weapons on the planet.” It is poor form to accuse another person of posting in bad faith simply because he continues to disagree with you, particularly when he explains at length–as I did right before Beer pulled out the bullshit bad faith accusation yet again–why he disagrees with you. If you guys want to play by some other rules, I’ll happily let you play with yourselves.
Well, I wasn’t really accusing you of bad faith. You asked Beer why it seemed that he always accused you of bad faith, and I thought I’d give my opinion on this particular issue that it wasn’t unreasonable to view what you said was acting in bad faith.
I don’t really think you have a tendency to act in bad faith - that is, intellectually dishonest - but you have a tendency to get caught up in the details of an issue over the principle sometimes, which can sometimes appear evasive. (Not in this particular case, just a comment on my view of your intellectual honesty in general).
When the Founding Fathers framed Amdt 2, the general populace was using and equipped with roughly the same technology as the military of the time. This is what made Amdt 2 a powerful tool - the people could defend themselves with roughly equivalent hardware. This has, of course, radically changed. Additionally, the general population’s greatest threat at the time was considered to be foreign and/or oppressive governments and “savages,” the “savages” clearly representing a threat to personal safety as opposed to a foreign aggressor. This of course doesn’t necessarily address the issue of self defense in DC, but it does shed some light on the mindset at the time Amdt 2 was penned.
It was common practice to keep firearms loaded, but not “cocked,” particularly in rural areas. It should also be noted that the common folk at the time were pretty crack shots, in general, as told by British accounts at the time. I’d be hard pressed to hit a squirrel at 100 yards with current weaponry and iron sights, much less a smooth-bore “Brown Bess” flintlock. Naturally, some portions of this paragraph are personal experience and subject to my own subjectivity…
I am a Concealed Handgun Licensee. There has been mentioned by Texican that he was mugged at gunpoint and had he been given the opportunity, would have plugged the mugger in the back as the perp was vacating the scene. As a CHL holder, it would be perfectly legal for me to do so. In fact, as a CHL holder, if my house has just been robbed after darkfall, and I was present, though I did not actually see the robbery, if I see a person fleeing (obviously running, etc.) the general vicinity of my home, with something that resembles an item from my home, then I can drop the potential perp like a stone, with no legal consequences.
Naturally, I don’t want to be the first test case for this in court, but in lay-terms, that’s how the law reads for CHL holders…
That’s just nonsense. I’ve already provided the Texas statutes that define murder and self-defense. Shooting a mugger in the back as he runs away is definitely within the former and definitely not within the latter. Please produce the Texas statute that exempts you from those laws.
Needless to say, that doesn’t privilege you to blast away in the circumstances you describe. And the claim of “no legal consequences” is particularly wrong, given that what we’re talking about is an affirmative defense. That means you go to trial for murder and you have to prove you’re innocent.
Simply put, having a CCW gives you no more privileges to shoot a guy than anyone else has. All it does is give you the right to carry a concealed weapon in circumstances when non-licensed individuals are not permitted to do so.
Here’s a loony thought, by a non-american, hopefully to stir up some debate:
If the second amendment garantuees every american the right to protect his home, and therefore bear arms - why not rewrite it? I know this probably is blasphemy to (most?) americans, but i never really understood why only the interpretation of your constitution is open to debate, never the question of whether parts of it simply isn’t updated to your present situation.
Remember your country fathers in a way was just second generation emigrants or so from dusty old europe.
It seems, as of now you are stuck in an ugly place, getting killed by the tens of thousands by the year. The strongest argument put forward (in my view) against a ban on firearms is that it be hard to get rid of all the firearms already in place, leaving the mostly the criminals armed, and the law-abiding citizens defenseless. That still only adds up to you being stuck in gridlock in an ugly place with no way out!
FWIW, I will concede, minty, that I am not a lawyer, and my CHL training did not make me a legal expert. Also, I would like to clarify that I was under the impression that the laws I was paraphrasing (and to which you provided cites) were specifically targeted to CHL holders, and not to any citizen using a firearm. This impression was arrived at due to the law being presented in the course of my CHL training, so I believe it is understandable that I would make that connection. (Of course you did not state that this particular set of laws does or does not apply to CHL holders exclusively, but I will presume for the moment that it does not.)
I also admit that I was hasty with the “no legal consequences” comment. Of course there would be legal consequences, the least of which would be a required appearance in court.
In Texican’s situation, he would be within his legal rights, if the action occured at night. This is further corroborated by “(A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.”
In my example, there would be mitigating circumstances which may or may not hold me culpable. For instance, (B) would certainly apply if there had been a string of robberies in the the vicinity, which had been either violent or deadly in nature. It would be defended that my shooting the potential perp in this instance was justified because of the circumstances, as well as that I was acting to prevent a future robbery that would “expose the actor or another to a substanital ris of death or serious bodily injury.”
Of course, my example wasn’t complete by not including the “additional circumstances” of local violent or deadly robberies, etc., so my initial example was invalid.
That notwithstanding, I also indicated that I would not want to be the test case in that scenario…and for me personally, I would let the perp go because he just wasn’t worth the hassle (assuming I was a one-shot burglary, etc…)
A BRIEF CORRECTION:
I used the wrong portion of the law to apply to Texican’s example…again, if the mugging occured at night: "(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property"
By this statement, if Texican were a CHL holder (or maybe a common citizen, I don’t know at this point), then he legally could have dropped the guy in his tracks.
This is pretty much what judicial review and the courts do. The constitution has been “clarified” on this point numerous times. In fact, the two (main) schools of constitutional law(strict constructionalist and non-strict constructionalist) are divided upon exactly the issue of if the constitution should be “modernized” and rulings given in line with what is most relevant today versus the “original intent” of the group who wrote it(called the framers).
The debate occurs when the courts rule in a manner the pro-gun, or anti-gun, groups/individuals disagree with. Still, for most issues, the law IS clear. There is a strong body of caselaw(individual clarifications of the constitution or other applicable law) on gun control. As legal scholars and lawyers know, the constitution doesn’t just consist of the text and the ammendments. It also encompasses many judicial rulings which effectively change the wording or add additional clarification to individual sections/ammendments.
The pro-gun groups/individuals believe some of the rulings were wrong and are exercising their democratic rights in trying to get the rulings reversed or new laws explicitly allowing gun ownership. The anti-gun groups/individuals are exercising their role in the democracy to try to make it meet their ideal as well.
The debate isn’t over IF the law should be clarified(essentially updated) or not, it’s about HOW it should be clarified. Should it expand gun ownership rights or restrict them?
Oh, yeah… Nitpick alert: minty, if you’re going to be using the law (which I think is commendable…education is a hallmark of this board), then please use the correct term.
The State of Texas does NOT issue a CCW. I’m not even sure what that is. The State of Texas issues a Concealed Handgun License.
Once again, a concealed carry permit gives you no more right to cap somebody else’s ass than any non-permit holder has. If you don’t believe me, check it out yourself: http://www.tcht.net/tch_laws.html
And by the way, Mtgman, I disagree with your characterization of the legal debate as between “modern” interpretations and an “original intent” approach. Courts always attempt to ascertain the original intent of a statute or constitutional provision. The dispute over the Second Amendment is about what they meant when they wrote that horribly unclear sentence. Even the courts that hold the 2Am confers or recognizes no individual right to bear arms and does not apply against the states do so on the basis of what they perceive as the original intent of the amendment. The 9th Circuit’s decision from last year is a particularly good example of that, holding that the federal right to bear arms is a collective right, not an individual right, after multiple pages of detailed examination of historical sources. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement
Needless to say, most of the posters in this thread would probably disagree.
I thought I had clarified that I wasn’t sure if the law applied to CHL holders or to the general public using a deadly weapon. In this example of it being after dark, etc., Texican would have been arrested, not for shooting the perpetrator, but for having a non-licensed concealed weapon. If, on the other hand, he had a CHL, he would certainly not be arrested for having a concealed weapon, and he would have been legally right in the shooting. Thus, it is logical that a CHL does in certain circumstances give you a “legal edge” that a non-CHL holder would not have.
Yes but consider an analogy with the Bible (and the constitution and the bible certainly seem to be the two written documents that makes the foundation of american reality). The bible also contains certain parts that just don’t make it in modern society. Like for instance the part about God annihilating the sodomites.
The problem then, with revising these documents, only by way of interpretation, is that the actual wording in the original text, still lends some unnessecary weight to individuals who happen to have just those opinions.
In the case of gun-control, there are, as i understand it, a substantial amount of people that claim that federal government can wring the gun out of their dead hands, because the second ammendment states their god (or country father) given right to protect themselves and carry arms.
Oh, c’mon, minty…
You’re going to give me a 9th Circuit California court’s ruling as evidence in Texas? Especially in light that California doesn’t have a CHL statute?
I will, however, concede the point of Texican’s example not holding water because of the link you sent me earlier. Namely, section 9.31(b)(3) which states:
"Self-Defense
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
(b) The use of force against another is not justified:
(3) if the actor consented to the exact force used or attempted by the other;"
In other words, since Texican consented and complied with the perp, and the perp then left him alone, then Texican would NOT have the right to shoot the perp on fleeing the scene.
My comment was NOT invalid though, when I stated that Texican would NOT have been arrested for having a concealed weapon, had he been a CHL holder. He might’ve been carted off for shooting the guy, but not for having the weapon with which to shoot the guy.
One more clarification, however…IF the perp had then made another menacing move, after Texican had already complied, then the situation changes.
It’s really pretty clear, and good reading, too…it’s also clear that there are considerably more situations where one is justified in using deadly force, than unjustified…but the unjustified positions are weighted pretty heavily. FWIW, I like the fact that, though the unjustified positions are weighted heavily, there are few of them, which means fewer decisions to make in those rare life-and-death moments.