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Thread: Self-defense is a constitutional right. By E. Volokh. Beyond statuatory or common law

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    Self-defense is a constitutional right. By E. Volokh. Beyond statuatory or common law

    "Generally speaking, courts rarely have to decide whether there is a constitutional right to self-defense, since all states generally recognize a statutory or common-law right to use force against another person in self-defense. And while there are constraints on this right — e.g., you can’t use deadly force against a relatively minor attack, some states bar deadly force when there is a completely safe avenue of retreat available, and so on — a constitutional right to self-defense is unlikely to be absolute. Traditionally accepted limitations on self-defense are likely to be seen as limiting any such constitutional right as well."

    https://www.courts.wa.gov/opinions/pdf/310787.unp.pdf

    http://www.washingtonpost.com/news/v...utional-right/

    But sometimes self-defense law contains substantial gaps (perhaps unintended by the legislature). One such gap is that many state penal codes — including, apparently, in Washington — expressly provide for self-defense only against people and not against animals. And in State v. Hull, the prosecution actually argued that “Self-defense is a defense to the use of force against a person, not an animal,” so Hull “was not entitled to a self-defense instruction.” “The language of the Washington Pattern Instruction 17.02,” the prosecution argued, “is … clearly limited to lawful ‘force upon or toward the person of another.’ Simply put, a dog is not a ‘person’ as contemplated by either the statute or the pattern instruction,” so when someone is tried for injuring a dog, the jury isn’t supposed to consider whether he acted in self-defense.
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    Campaign Veteran skidmark's Avatar
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    Washing Circuit Court of Appeals finds constitutional right to self defense

    And not just self defense aginst other persons!

    A recent decision from the Washington Circuit Court of Appeals http://www.washingtonpost.com/news/v...utional-right/ says 1) that the right to self defense is a constitutional right, and 2) that right specifically applies to self defense again other than persons.

    I'm linking to Voloch's column rather than the actual decision because it gives an explanation of the reasoning that led to the decision regarding the constitutional right of self defense - against persons and against other things like dogs.

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    All ready posted ten hours ago. Moderator merge?

    I am responsible for my writing, not your understanding of it.

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    Moderator / Administrator Grapeshot's Avatar
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    Merged, but placed in News & Political Alerts. This could have a profound positive effect beyond the obvious.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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    What's in a name, particularly absent papers.

    I believe the court erred in taking notice of a name given property. It's another slip in the slide to moral equivalency of beasts and men.

    "Mommy, mommy, that mean man squished Wooley Booger!"

    Much is made of Mr. Hull's earlier alleged misbehavior.
    Last edited by Nightmare; 12-29-2014 at 09:53 AM.
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    Campaign Veteran since9's Avatar
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    Self-defense is far more than a Constitutional right. It's an inalienable right. In fact, it's the right of every organism on the planet.

    When our Founding Fathers mentioned "life" in the "life, liberty, and the pursuit of happiness" clause of inalienable rights, they were taking about the preservation of one's own life. That is the very essence of self-defense.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by since9 View Post
    Self-defense is far more than a Constitutional right. It's an inalienable right. In fact, it's the right of every organism on the planet.

    When our Founding Fathers mentioned "life" in the "life, liberty, and the pursuit of happiness" clause of inalienable rights, they were taking about the preservation of one's own life. That is the very essence of self-defense.
    Not so - I drew a line somewhere back there.

    Consider the organism's position in the food chain, whether is causes me harm (illness?), etc. I will grant that all things have a purpose - just don't see that as an inalienable right.

    I eat beef, pork, and chicken (sorry PETA) and terminate harmful bacterium thanks to modern Rx, and do all these w/o any measure of guilt.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    I invite anyone equilibrating beasts and men to open his corpus as a vacations spa for Eboal virus.
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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Not so - I drew a line somewhere back there.

    Consider the organism's position in the food chain, whether is causes me harm (illness?), etc. I will grant that all things have a purpose - just don't see that as an inalienable right.

    I eat beef, pork, and chicken (sorry PETA) and terminate harmful bacterium thanks to modern Rx, and do all these w/o any measure of guilt.
    The right doesn't disappear because you infringe upon it even if acting within your place of the food chain.

    The natural inclination of any creature is one of self defense.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    [ ... ] The natural inclination of any creature is one of self defense.
    That is rank (means reeking) anthropomorphic teleology. There is no evidence of awareness of self in low creatures (rather than starting at the top and quibbling downwards, start at the bottom).
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    Moderator / Administrator Grapeshot's Avatar
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    Originally Posted by since9 Self-defense is far more than a Constitutional right. It's an inalienable right. In fact, it's the right of every organism on the planet.
    --snipped--
    To further the rejection of such broad brush ideas, I have never had plant based foods object or respond to my terminating their life or consuming their parts......and I do so OCing = prepared to respond if forced to do so.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Grapeshot View Post
    To further the rejection of such broad brush ideas, I have never had plant based foods object or respond to my terminating their life or consuming their parts......and I do so OCing = prepared to respond if forced to do so.
    It is that you just don't care, not that the poor plants have not objected.

    Cheery pick your rebuttal from the below.

    https://www.google.com/?gws_rd=ssl#q...ants+feel+pain
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Plants have all sorts of self-defense mechanisms against negative environmental threats (disease, adverse temperatures, drought, insects, and yes, in certain cases, even humans). The self-defense mechanisms of plants are varied and include thorns, toxins, foul smells and other defenses.

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    Our right to KBA stems from our right to defend ourselves.

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    Quote Originally Posted by Nightmare View Post
    That is rank (means reeking) anthropomorphic teleology. There is no evidence of awareness of self in low creatures (rather than starting at the top and quibbling downwards, start at the bottom).
    I see your point. I just don't think the right or natural inclination of self preservation (defense) is dependent upon self awareness. It appears to me many humans aren't very self aware either......lol....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
    I'm fairly certain that means they intend for this decision to be non-precedential.

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    Regular Member Logan 5's Avatar
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    Quote Originally Posted by marshaul View Post
    I'm fairly certain that means they intend for this decision to be non-precedential.
    What one intends often differs than what is decided. Even though the case says "unpublished opinion", since the case is still technically published it can be referred to in other legal proceedings.
    Last edited by Logan 5; 01-10-2015 at 05:58 AM.
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    Regular Member SouthernBoy's Avatar
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    Actually self defense is not a Constitutional right. It is a human right. There is nothing in the Second Amendment that mentions self defense. One can argue that it infers this and I think this is a sound argument. But the fact remains that the Second Amendment says nothing about self defense. And there is reason for this.

    The Founders, in their wildest dreams, would never have imagined that anyone would question the inherent right of individuals to defend themselves against an aggressor(s). This was as natural and acceptable as breathing. It is only within more recent years (perhaps 50 or so) that the issue of self defense has come into question by some. This is more than folly, it is sheer lunacy to attempt to put self defense on the same footing as the actions of an assailant, but that is what some have tried to do (Washington Post, Bella Abzug, a DC councilman, and others). One has to wonder what these people would do when suddently confronted by a really bad situation. I know what one would have liked to have done. Richard Cohen, an editorialist for the Washington Post (don't know if he still is) used to write very anti-gun columns in the Post years ago until one day he had an epiphany. Seems he was faced with a bad situation and found himself thinking that he wished he had a gun. I still have the article in which he confessed this surprising moment.

    Reality does bite and has a tendency to alter one's outlook when one is faced with it like RIGHT NOW.
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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by SouthernBoy View Post
    Actually self defense is not a Constitutional right. It is a human right. There is nothing in the Second Amendment that mentions self defense. One can argue that it infers this and I think this is a sound argument. But the fact remains that the Second Amendment says nothing about self defense. And there is reason for this.

    The Founders, in their wildest dreams, would never have imagined that anyone would question the inherent right of individuals to defend themselves against an aggressor(s). This was as natural and acceptable as breathing. It is only within more recent years (perhaps 50 or so) that the issue of self defense has come into question by some. This is more than folly, it is sheer lunacy to attempt to put self defense on the same footing as the actions of an assailant, but that is what some have tried to do (Washington Post, Bella Abzug, a DC councilman, and others). One has to wonder what these people would do when suddently confronted by a really bad situation. I know what one would have liked to have done. Richard Cohen, an editorialist for the Washington Post (don't know if he still is) used to write very anti-gun columns in the Post years ago until one day he had an epiphany. Seems he was faced with a bad situation and found himself thinking that he wished he had a gun. I still have the article in which he confessed this surprising moment.

    Reality does bite and has a tendency to alter one's outlook when one is faced with it like RIGHT NOW.
    +1 The legal tradition of common law didn't change along with its recognition of self defense.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Do we have a right to self-defense?

    Or do we have a right to be alive plus a right to defend our rights?

    If the second combination, then armed self-defense can only happen when someone knowingly forfeits their right to be alive by trying to take your right to be alive.

    We also have a right to own property and not be injured by others, whether through conscious action or criminal negligence.

    So self-defense in your stereotypical "street mugging" is actually exercising a right in defense of three rights because someone forfeited their right.

    DISCLAIMER: The preceding was my opinion. I am not a lawyer or even an overly-educated human.
    I carry everywhere because crime doesn't make appointments.

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    Common law self defense allows force only sufficient to deliver oneself from evil. There is no right to take another life. That it may be an unintended consequence of self-defense is committed with deadly force.
    I am responsible for my writing, not your understanding of it.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Nightmare View Post
    Common law self defense allows force only sufficient to deliver oneself from evil. There is no right to take another life. That it may be an unintended consequence of self-defense is committed with deadly force.
    Unintended...now that is funny.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by OC for ME View Post
    Unintended...now that is funny.
    Not so says my go to attorney, law guru.

    I'm in VA where there are two court defense options if one commits a homicide: Justifiable or excusable, and to use that defense one must first admit to the willful/intended act.
    http://legal-dictionary.thefreedicti...sable+Homicide
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    ...unintended consequence (death?) is committed with deadly force. What then is the intention?

    It may be that VA law needs reviewing where a cop were to defend himself with deadly force against a perpetrator (man or animal) and unintentionally kills a bystander. Is this justifiable or excusable.
    Manslaughter typically involves an unintentional killing that resulted from a person's criminal negligence or reckless disregard for human life.
    A OH cop is facing just such a determination.

    I suspect that where cops are concerned the definition is immaterial. Too many examples of a cop not being held to criminal account for a act of homicide. And there exist examples of a cop not being held to any meaningful account for that act of homicide.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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