Does the 2nd Amendment provide a right to self defence in one's home? (D.C. suit)

[minty_green]

*Originally posted by DirkGntly *
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.

Nope. He only gets off the hook if, among other things, he can prove it was reasonable to believe killing the guy was the only way to recover his wallet and that using any lesser level of force would have exposed him to a substantial risk of death or serious bodily injury. I’m also unsure whether Texican’s wallet qualifies as “tangible, movable property” under 9.41 (which must be satisfied before you get to the defense of 9.42), although I suspect it probably is.

And as you may have noticed, the juries in this state are not always real kind to people who claim the dead person deserved it. All in all, it would be foolish in the extreme to shoot a fleeing mugger in the back.

And Dirk, try to read my posts slowly and carefully: I was responding to Mtgman with that 9th Cir. opinion, not to you. Sheesh.

[minty_green]

*Originally posted by DirkGntly *
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.

That’s almost certainly incorrect. “Consent” is not obtained at gunpoint. Thus, the exception to self-defense would not appear to be applicable.

[DirkGntly]

My apologies on the mis-cite, minty…
it’s late, I’m tired, yadda yadda…

Regardless, I think you’ve made some valid points…I’ve even conceded some of mine.

I’ll say this: yes, it would be foolish to shoot a fleeing mugger in the back (I wouldn’t do it, myself)…would he get away with it? I give that a 50/50 chance depending entirely on the jury, the prosecuting attorney, and the county in which it would be decided…

[DirkGntly]

That’s almost certainly incorrect. “Consent” is not obtained at gunpoint. Thus, the exception to self-defense would not appear to be applicable.

If “consent” isn’t obtained at gunpoint, then aren’t we back to the concept that Texican could shoot the perp in the back as the perp was fleeing the scene with the ill-gotten goods? Not that I would recommend it, mind you…but…
Since the self-defense exception is invalid, and we’ve conceded that the wallet very likely does qualify as “tangible, movable property” under section 9.41…
that puts us back at “shoot the sucker in the back if it’s after dark” (to put it rather caustically).

[DirkGntly]

Oh, yeah…

He only gets off the hook if, among other things, he can prove it was reasonable to believe killing the guy was the only way to recover his wallet and that using any lesser level of force would have exposed him to a substantial risk of death or serious bodily injury.

Since we’ve already established that the perp had a gun, it would seem likely (in my opinion, of course) that it would be found that using a gun on the perp would be the only way to ensure that Texican would not be exposed to substantial risk of death or serious bodily injury.

[DirkGntly]

Going to bed for now, folks…
I’ll pick it up tomorrow…
minty, it’s been educational and stimulating! Good posting with you!

• Dirk

[SenorBeef]

*Originally posted by RandySpears *
**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.
**

A) Because it’s a real bitch to change the Constitution.

B) Even if you remove specific enumeration for protection of that right, the right still exists.

[SenorBeef]

*Originally posted by DirkGntly *
**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 believe California does have a CHL provision, but it’s only available to those who generous donate to the campaign funds of polce chiefs, anti-gun senators, and the like.

[RandySpears]

*Originally posted by SenorBeef *
**A) Because it’s a real bitch to change the Constitution.

B) Even if you remove specific enumeration for protection of that right, the right still exists. **

Hm, in what specific way is it that (B)? Are you refering to Rights of Man, as inherent in some natural state? Then it comes down to philosophical reasoning, and really history shows that such a right can at best be upheld in a particular society, as the american. We haven’t seen the right to bear arms in the declaration of human rights as of yet…

(A) My point was just this: that the americans unability to rewrite the parts of their constitution that is not up do date leads to your current gun-craze.

[minty_green]

More on shooting bad guys in the back and stuff that looks like maybe it’s your property:

At trial in the instant case, the jury was properly instructed on the law of justified deadly force in protection of property. . . .

We now turn to a review of the evidentiary sufficiency. As noted above, appellant testified that he did not see a weapon on Tellez when he shot the second time. He did not scream for help. He never warned Tellez that he had a gun or fired a warning shot. Mr. Villante testified that appellant approached Tellez initially, Tellez was trying to get away from appellant, and appellant seemed to be in control of the situation. One of the fatal gunshot wounds was in Tellez’s back, supporting the position that appellant was the aggressor and Tellez was trying to get away.

In addition to these facts, two witnesses, Mario Arteaga Cervantes and Caroline Flores, testified that the deceased was wearing two gold chains that evening. However, the pictures of the body and the testimony of James Ebdon reflect only one chain was found on Tellez’s body. Although appellant and his friend, Mr. Morillo, testified that the gold chain found near the scene looked like one appellant wore, Tellez’s girlfriend identified the chain as belonging to the deceased. Defensive evidence which is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient. The determination of the credibility of such evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence. Jenkins v. State, 740 S.W.2d at 438.

It is our opinion that the evidence is sufficient for the jury to have found that appellant was the aggressor. Further, we find that the evidence is also sufficient for the jury to have found that, even if Tellez had been the aggressor, appellant did not reasonably believe his property could not be protected or recovered by any other means or that less than deadly force would have exposed him to substantial risk.

We hold that the evidence is sufficient for the jury to have found beyond a reasonable doubt, in addition to finding all the elements of murder, that deadly force in defense of property was not justified. Appellant’s third point of error is overruled.

Valdez v. State, 841 S.W.2d 41, 44-45 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d).

[UncleBeer]

I couldn’t find the Washington quote in any of my books last night. Sorry 'bout that, minty.

Beer, why is it that every time you and I meet in one of these threads, you end up accusing me of posting in bad faith? It’s really obnoxious.

Because I believe you often post in bad faith. But we’ve been through this before and I see no reason to do it again. Especially here because I’m afraid I’d say some rather pungent things about your character.

[minty_green]

Okey doke. Remind me to never pay attention to you as a poster again.

[Robb]

Unless you meant a situation in which you shot a running criminal, in which case I misunderstood.

SenorBeef, I believe Texican was advocating shooting the criminal as the criminal was leaving. He at some point suggested that maybe the criminal would later decide to kill Texican, so the criminal needed to go first. As minty explains, that isn’t self-defense.

[Susanann]

*Originally posted by RandySpears *
**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.

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! **

Because, as Senorbeef sort of alluded, the right of the people to keep and bear arms, is an unalienable right, endowed by our creator.

The Second Amendment does not “give” americans the right to keep and bear arms, it is supposed to “protect” that right.

Even if the Second Amendment was entirely repealed, no matter how many laws are passed, no matter what a modern day judge may think, that right still exists.

Since the Second ammendment did not give anything, taking it away, or rewriting it, will not eliminate anything.

“Government” did not give it, so “government” cannot take it away.

Furthermore, you misunderstand America, and freedom, which is understandable since you are not an American.

Most Americans do not consider ourselves to be in “an ugly place”, rather, we are proud to be where we are and that we are free and that we are armed. Americans are the ones who are the most “secure” and most “safe”. Slaves are disarmed, free people are armed. A free government does not fear that its citizens have arms. America has never been successfully invaded, and never will be. FYI, more people died in the 20th century by being killed by their own governments - something that Americans never have to fear. Armed Americans simply cannot be rounded up, put into cattle cars, and executed.

However, you are right that any attempted ban on firearms, would not be successful. There are to many hundreds of millions of them, and guns are too easy to make to ever be eliminated. Nearly anyone can make a working gun, teenagers make crude but working single shot guns just from 2 simple pipes.

What country are you from?

[Susanann]

*Originally posted by RandySpears *
**
(A) My point was just this: that the americans unability to rewrite the parts of their constitution that is not up do date leads to your current gun-craze. **

When you say “current gun craze”, do you mean the time period from 1776 -2003?

[Susanann]

*Originally posted by Joe_Cool *
**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. **

The Second Amendment has nothing to do with the National Guard, the National Guard did not even exist in 1789.

[minty_green]

*Originally posted by Susanann *
Because, as Senorbeef sort of alluded, the right of the people to keep and bear arms, is an unalienable right, endowed by our creator.

Sorry, you lost me with that “creator” thing. Given that there is no god, all the rest of your argument about pre-existing rights is nothing more than a preference on your part. I’ll put my preference up against yours any time.

Armed Americans simply cannot be rounded up, put into cattle cars, and executed.

More scare-mongering? How shocking.

The Second Amendment has nothing to do with the National Guard, the National Guard did not even exist in 1789.

But of course, the “militia” did, and the Constitution gives the feds the right to control that militia if they choose to do so. Art. I, sec. 8, paras. 15 & 16.

[Susanann]

*Originally posted by DirkGntly *
**For what it’s worth, my two cents’:

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. **

Any American citizen could own ANY!!! weapon in the world, until 1934.

At the time of the American Revolution, and well into the 1800’s, American citizens could even own the most powerful weapon imaginable on earth- a battleship!! And some Americans DID privately own battleships, as well as cannons, etc. The founding fathers not only saw no problem with that concept, they even recruited those private individuals who owned battleships to assist the US Army in times of need.

In 1934, machine guns were heavily regulated, plus a few other specific weapons like sawed off shotguns, but again, for the most part, most of the weapons of war, tanks, bazookas, mortars, whatever, were perfectly legal for any American citizen to own until 1968 - which is very recent in the long history of America.

American citizens generally were not only “as well equiped” as the US Army, private citizens were actually “better” equiped(if they so chose) than the US Army, until very recent times.

My own family owned revolvers and repeating rifles long before they were issued to our troops. My father could own and carry a machine gun, or a bazooka, any time he wanted to until 1934 or 1968 respectively - something that a regular private in the US Army did not have a choice to do.

[Susanann]

---

Armed Americans simply cannot be rounded up, put into cattle cars, and executed.

*Originally posted by minty green *
**
More scare-mongering? How shocking. **

I think you are right, I gotta give you that. It is shocking and scary.

I do seem to recall, that I did hear that the unarmed people in Poland who were rounded up and put into cattle cars, were, as you say, quite “scared”, and “shocked”.

I also heard similar stories of the unarmed citizens of France, Holland, Denmark, Russia, China, Vietnam, Cambodia, Zaire, East Germany, and Czechoslovakia, Mongolia, Laos, Cuba, Grenada, Afghanistan, Angola, Ethiopia, Mozambique, Nicaragua, and South Yemen, Turkey, Syria, Sri Lanka, Iran, Indonesia, Sudan, Somalia, and Burundi, Korea, the Congo, Uganda, Ukrane, etc. etc. etc. that they too were “shocked” and “scared” just before they were executed, not only by foreign invasion, but those unarmed tens of millions who where executed by their own governments.

http://www.hawaii.edu/powerkills/POSTWWII.HTM
“Death By Government), from 1900 through 1987 governments murdered near 170,000,000 people”

Yes, I give you that 170,000,000 unarmed people being murdered by their own governments is quite “shocking” and “scary”, 6 million unarmed jews pales in comparison, but still is"shocking" and “scary” although only it only affected 6 million .

This is something that an American who “keeps and bears arms” never has to worry about, we are unique in the world in our safety and freedom.

I guess it may be difficult for a foreigner who has had family killed by his own government, or killed by an invader like Hitler, to understand why Americans love the Second Amendment, and why those things didnt happen here.

The numbers of deaths by accident or by criminals, is quite small when you look at the larger overall picture of whether it is safer for citizens to be armed or defenseless.

http://www.hawaii.edu/powerkills/WSJ.ART.HTM

[Max_Torque]

*Originally posted by minty green *
Sorry, you lost me with that “creator” thing. Given that there is no god, all the rest of your argument about pre-existing rights is nothing more than a preference on your part. I’ll put my preference up against yours any time.

Not so fast! The Presser case, which as you yourself noted earlier is still good law, quotes the earlier case of U.S. v. Cruikshank:

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

Much the same was said in the same case about the right to assemble:

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference.

Emphasis in both quotes added. Sure sounds to me like the Supreme Court thinks that rights are derived from some source other than the Constitution itself.