Yet another wrinkle in the assertion that the Second Amendment in some way allows for “self-Defence”:
The Fifth and Fourteenth Amendments to the United States
Constitution each contain a Due Process Clause. Due process deals with
the administration of justice and thus the Due Process Clause acts as a
safeguard from arbitrary denial of life, liberty, or property by the
Government outside the sanction of law.
The general common law principle is that the law allows only
reasonable force to be used in the circumstances and, what is reasonable
is to be judged in the light of the circumstances as the accused
believed them to be (whether reasonably or not). The jury should be
directed to look at the particular facts and circumstances of the case
in deciding whether a defendant had used only reasonable force. After
all, the defendant will always be of the opinion he used reasonable
force.
Only reasonable force may be used. Despite a common belief to the
contrary, one is not at liberty to shoot dead a burglar wandering around
one’s house if one does not fear for one’s own life in common law.
Anyway, historically Clause 39 of Magna Carta provided:
No free man shall be seized or imprisoned, or stripped of
his rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force against him,
or send others to do so, except by the lawful judgement of his equals or
by the law of the land.
This came into US law via the Due Process guarantees of the US Constitution found in the Fifth and Fourteenth Amendments.
The Fifth Amendment to the United States Constitution provides:
[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law .
The Fourteenth Amendment to the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law .
The issue here is that these laws allow for summary justice and
vigilantism outside of the legal process. One should not take the law
into his/her own hands for the purposes of revenge, retribution, or
sheer vigilantism. The rule of law must be maintained and violence
discouraged by a proper legal system for it to have any authority.
Of course, this is just a musing, but perhaps it will be taken up by
someone else who is offended by the allowance of murder by an out of
whack US legal system.
Additional thoughts on this topic:
I should have mentioned the concept of wergild, which was a value
placed on every human being and every piece of property in the Salic
Code. If property was stolen, or someone was injured or killed, the
guilty person would have to pay weregild as restitution to the victim’s
family or to the owner of the property.
The important aspect of this was that the payment of weregild
performed an important legal mechanism in early Germanic society since
the other common form of legal reparation at this time was blood
revenge.
The foundation of the American legal system rests on the Rule of Law,
a concept embodied in the notion that the United States is a nation of
laws and not of men. Under the rule of law, laws are thought to exist
independent of, and separate from, human will. Even when the human
element factors into legal decision making, the decision maker is
expected to be constrained by the law in making his or her decision. In
other words, police officers, judges, and juries should act according to
the law and not according to their personal preferences or private
agendas.
Vigilantism is the people’s complete disregard for the rule of law.
The problem is that vigilantes risk starting a cycle of violence and
lawlessness in which the victims of vigilantism take the law into their
own hands to exact pay-back.
There is a reason that Clause 29 of Magna Charta provided that:
NO Freeman shall be taken or imprisoned, or be disseised
of his Freehold, or Liberties, or free Customs, or be outlawed, or
exiled, or any other wise destroyed; nor will We not pass upon him, nor
condemn him, but by lawful judgment of his Peers, or by the Law of the
land. We will sell to no man, we will not deny or defer to any man
either Justice or Right.
These laws are a denial of justice and right which has been sanctioned by the state.
There is a reason that the force used for self-defence is that which is reasonable to stop the threat yet respecting life.
And justice. There is a long case line that works to promote the
rule of law and discourage vigilantism in the Common Law (and other
legal systems)
Nevada Sen. Ruben Kihuen, left, congratulates Sen. Justin Jones, both
D-Las Vegas, after the Assembly voted 23-19 to approve Jones' bill
mandating universal background checks for all gun sales in Nevada. The
bill drew a large crowd in the gallery of the Assembly as lawmakers
work through the final hours of the 77th Legislative session at the
Legislative Building in Carson City, Nev., on Monday, June 3, 2013.
Photo: Cathleen Allison
