It's always interesting to thumb through old law books. Those that are truly great are a vast store-house of "common sense" and illustrate just how uncommon it really is. Self-defense is one of those topics which is often ignored by those who are in favor of gun-control. Here are some passages from one such law book which clearly elucidates the law behind self-defense. Following each portion will be a few thoughts on how this relates to firearms and other weapons.
Please remember, I am not a lawyer and you are responsible for knowing and understanding the laws in the place where you live. That being said, the guidelines here are clear enough and reasonable enough to offer a solid foundation upon which to understand the legal basics of self-defense.
The Natural Right to Self-defense
The term "self-defense" may be defined to be a species of redress exercised by one person to protect his person or property from injury by another...The right of self-defense is derived from nature. To repel force by force is the common instinct of every creature that has means of defense. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral duty. Municipal law has left to individuals the exercise of this natural right of self-defense in all cases in which the law is either too slow or too feeble to stay the hand of violence. The right extends not only to the individual himself but to those who bear the relation to him of parent and wife; and it also extends to his house, called in the law his "castle"; the defense of which he may make effectual from all attacks. And if, in making this defense, it becomes necessary to take the life of the aggressor, it will not be felonious but excusable homicide. At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law limits the right by necessity. When self-defense is interposed in justification of acts done, the first inquiry is as to the alleged necessity. When such necessity, real or apparent, ceases, the right no longer exists. No power can be used by the party making the defense beyond what will simply prove effectual. [The American and English Encyclopaedia of Law edited by Charles F. Williams, 1893; p. 1058]This is an amazingly clear definition and elucidation of the term "self-defense". Within it are some important points:
- Self-defense is a natural right - The right is not granted by any law of man, but is determined by the rules of the world in which we live. It is a "common instinct of every creature that has means of defense". There can therefore be no fault in a person for exercising self-defense.
- Self-defense is often a moral duty - To avoid defending ones self is to allow an aggressor to go unchallenged. This often directly results in the aggressor causing further harm. A father who does not defend himself may leave his children as orphans dependent upon the state. Further, the aggressor is allowed to continue to be an aggressor. While the victim may not be concerned with the protection of his own life he must also understand that other lives may be at risk should he fail to conclusively stop the aggressor. A murderer is likely to kill again. A rapist is likely to rape again. Failing to stop the aggressor places moral blame upon the person who does nothing in self-defense.
- Self-defense is necessary when the law is slow or feeble - This is a clear understanding that government officials are incapable of always acting fast enough or with enough authority to stop an aggressor. In those cases the victim has every right to do that which the government cannot do but would have been morally constrained to do had it been able.
- Self-defense extends to members of the family protecting each-other - It is not enough to simply say that a person is only allowed to defend himself. The family is understood to naturally be under the protection of its members.
- Self-defense extends to the home or "castle" - While this concept has taken on a resurgence in the United States in recent years it is clear that there is nothing new here about the "castle doctrine". The home is the natural protected domicile of the person and an invasion of the home can be interpreted in no other way than an invasion of the most private of spaces. Implicit within that concept is the utter disregard for the safety of the residents. An invasion of the home while the occupant is there indicates a willingness and readiness to do immeasurable harm to the occupant and her family. It is further impossible for a person to know the exact intentions of such an invasion and the law understands that, because of the reasons stated, the worst may be assumed and acted upon.
- Self-defense must be justified by the situation to avoid abuse - Self-defense is, as are other natural rights, liable to abuse. However, that liability does not negate the appropriateness of it. Rather, the law recognizes that an abuse is treated as any other action which results in the death of a person and can hold the person responsible for that death as a murderer. The question of justification is based upon real or apparent necessity and is a reasonable test to control abuse.
- Self-defense must be proportional to the threat - The act of self-defense is limited to powers which will prove effectual. A man stabbing a child who has kicked him in the shins is clearly undue force and cannot be accepted as moral upon the grounds of self-defense. However, a woman who is being beaten or strangled by a larger and more powerful man is justified in killing him to end the threat to her person.
Under what reasonable pretext then would we take away from a weaker person the ability to fight against a stronger person? Similarly, what reasonable pretext would we use to remove the ability of a single person to effectively fight against an attack by multiple aggressors?
How much force?
If a person were to use a club against three aggressors we would not fault him for taking a weapon in his hand. Similarly, a knife or sword would be acceptable. The question becomes when is a weapon "too much" in a case of self-defense. That question is usefully answered in the next section:
If an assault is made upon one it may be repelled by force sufficient for self-defense. The party making the first assault is liable not only for a breach of the peace but for all the personal injuries he has inflicted. But the law requires that no more violence be used in self-defense than appears to the person defending his rights to be reasonable under the circumstances to repel the assault. Thus, it is not justifiable to use a deadly weapon to repel a push or blow with the hand. If the person assaulted uses excessive force beyond what is necessary for self-defense, he not only deprives himself of the right to maintain an action for the assault, but is liable for the excess. If the assault is of such a nature as to afford reasonable ground to believe that the design is to destroy life or commit a felony upon the person assaulted, killing of the assailant will be excusable homicide in self-defense. But the accused, to avail himself of the plea of self-defense, must have been free from fault in provoking or bringing on the difficulty which resulted in the killing. It is not enough that in the course of the difficulty it became necessary for him to kill the deceased in order to save his own life or prevent great bodily harm. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means.Once again, the important points:
The question of how much force the person assaulted has a right to use in repelling the assault must be passed upon by the jury. And where a man kills an assailant under the belief that his life is in danger, the question whether the belief is reasonable under the circumstances of the case must also be determined by the jury.
As to injuries received by an innocent third person from an act done in self-defense, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It is to be considered, however, that a man repelling imminent danger cannot be expected to use as much care as if he had time to act deliberately.
- In the event of an assault, force may be used that is sufficient for self-defense - It is acceptable to use all force necessary to stop the threat from the attacker. If the result is a bloodied nose, broken leg, or even death then that is acceptable. However...
- No more force may be used than that which is necessary to reasonably repel the assault - It is not acceptable to use force beyond what is necessary to stop the threat to the person being attacked. If a kick will do then that is all that is necessary. If only death will stop the attack then that is acceptable.
- A reasonable belief of the intent to destroy life or commit a felony upon the person being assaulted is enough to justify using deadly force - It is not necessary that the person being attacked already be cut by a knife, have all of her clothes ripped off, or have a bullet hole within her to use deadly force. She is justified in meeting force with force in order to stop the attack.
- The person using deadly force cannot appeal to self-defense if he was at fault in provoking or bringing on the difficulty which resulted in the killing - As another commentator stated, "Self-defence [sic] may be resorted to in order to repel force, but not to inflict vengeance."
- Retreat is necessary when practical - However, as is stated in the volumes footnote, "It is error to charge the jury, upon a trial for murder, that to justify homicide, on the plea of self-defense, it must appear that the slayer had no other possible, or at least probably, means of escaping." In other words, if a person has a reasonable opportunity for retreat and instead willfully remains in the fight or allows the fight to occur in order to exact vengeance then that person can no longer argue self-defense. It is not acceptable however, to argue after the fact that there may have been a method of escape that the slayer simply did not see or did not find reasonably acceptable and so the person is guilty of murder.
For instance, one anti-gun advocate may say, "Well, I don't think you should be able to shoot somebody simply because the guy was robbing the house next door." Correct, and neither does the law. The person firing the weapon must be reasonably afraid of being killed or harmed before he can use deadly force.
Another anti-gun person may say, "If we allow people to pack guns then when there's a shooting he can just fire bullets in any direction and that's okay because he has a permit to carry a gun." No he cannot. If another person who is not a combatant is injured by a person exercising self-defense then the person shooting is liable under normal laws for reckless endangerment. Randomly spraying a room filled with non-combatants with gunfire from around a corner or from under cover is not self-defense and not protected by the law.
Similarly, some anti-gun advocates will say, "Well, if we're going to argue for self-defense then let everyone have grenades, tanks, and nuclear bombs." This ignores the precedent within the law for using "reasonable" force. Stopping a rapist with a nuclear bomb or grenade is clearly outside the range of reasonable force.
Another anti-gun advocate may say, "Great. This means that a person can shoot another just because he got pushed or punched in the nose. It just escalates forever until somebody dies." Again, this is incorrect. The law requires that a person use only that force reasonably understood at the time of the attack to be necessary to stop the threat.
Another argument is that a person with a permit will take that as "a license to kill" and there is nothing that can legally be done about it. However, as the above discussion indicates there is no such "license". A person must not instigate the combat. Nor is he allowed to remain in combat if he has a reasonable opportunity to leave. For instance, should the assailant fall down a stair well and the attacked remains to "finish the job" rather than escape self-defense no longer applies.
Handguns in particular
Is a handgun then to be considered "too much" weapon for self-defense? The easiest way to answer this question is to begin with the extremities and then work toward a fuller understanding.
Never too much
To say that a handgun is never too much of a weapon to use would be to say that shooting a person is completely reasonable even in a case of being pushed with a hand. As was stated above, there must be a proportionate level of force used for it to be justifiable self-defense. Pounding a person over the head with a baseball bat because he pushed you with an open hand is clearly not self-defense. Similarly, shooting such an attacker is far outside a proportionate response.
Always too much
To say that a gun is always an unreasonable amount of force is to say that there is no conceivable situation in which using a handgun is morally acceptable in the face of an attack. Therefore, a person would have to say that it would be morally wrong to shoot a man from across the room who was about to slit the throat of a baby.
Throwing out the Extremes
It seems clear then that the two extremes are not reasonable. Unfortunately, this is an unacceptable situation for the anti-gun advocates. They argue that there are other options and that a gun is too extreme of an option in any circumstance. However, this is clearly not reasonable. In the above case with the baby there is no reasonable way of defending the life of the innocent other than to shoot him. The situation is too extreme in its own right to justify an extreme stance against guns that says they are never justified.
However, it is at the moment of understanding that there are times were a gun is potentially justified that the flood gates open and the anti-gun crowd find themselves in dire straights. If there is a morally justifiable reason to use weapons then it follows that there is a morally justified reason to allow the possession of weapons. This moral justification grows with the number of situations in which it is reasonable to use them.
This understanding of moral justification has pushed anti-gun groups into extraordinary extremes. For instance Sarah Brady once advocated that a woman is better off to allow herself to be raped than to fight back with a gun. In other words, a woman who is likely smaller, physically weaker, and unable to fight off her attacker would not be justified in using a lethal weapon in the pursuit of self-defense. This utter disregard for the health and well-being of the victim is difficult to understand. Not only is the aggressor committing a legal felony by violating her body proper, but he is putting the woman's life at risk through the possible transmission of life-threatening disease. The emotional trauma can also be life threatening and have adverse effects upon not only her but her family.
A similar mindset against self-defense came into play with the rise of terrorism. The argument was made that resisting terrorists would probably lead to death while being passive might result in a safe release. However, this argument ignored the moral responsibility to others who are not immediately present that demands self-defense be employed. Simply submitting to all demands of terrorists ignored the reality that not fighting back would allow the terrorists to continue to put additional innocent lives at risk. This was failure to understand the moral requirement of self-defense resulted in recommendations from governments and airlines that in the case of a hijacking the best policy is to simply follow the directions of the terrorists rather than to fight them with all reasonable force. 9/11 demonstrated how seriously flawed such a policy can be.
To be sure no single justification is enough to allow any possible weapon. A man in Montana may not reasonably argue that he should have a nuclear bomb simply because a world leader in China might threaten him with a nuclear bomb. Such a bomb has the capability of killing many thousands instantly if not properly cared for. In addition, a nuclear weapon is indiscriminate and likely to kill many thousands of innocents as well as the intended aggressor.
However, as the moral objections against a weapon reduce in number the moral acceptability of possession of the weapon grows. Guns by themselves do not degrade and pose a massive health risk simply due to age. They do not massacre thousands when employed in a single circumstance. In fact, unlike a bomb, they are remarkably precise weapons.
Finally, a handgun is the single most effective weapon to use for "sudden and strong resistance" against a larger attacker or multiple attackers. It not only is possible to use a firearm for self-defense it allows self-defense to be possible in any reasonable circumstance.
Similarly, in past ages, other weapons had somewhat the same effect. A dagger would be a weapon capable of helping to "even the odds" between a smaller victim and larger attacker. A sword would allow a single person better odds against multiple enemies than fighting only with his hands.
Of course, the attackers are always capable of gathering to themselves weapons as well in an attempt to sway the odds in their favor. The question is not whether or not the criminals will have arms, they most assuredly will, it is whether or not an attempt to control weapons places the victims at an undue disadvantage.
At this point we must come to realize that taking away a method of reasonable self-defense is in itself immoral. Such laws are unjust because they manifestly leave the criminal with an undeniable advantage over the law-abiding citizen.
Conclusions
So where does this leave us? Traditionally, the argument as defined by the anti-gun advocates, is that guns pose too great a danger to the persons who wield them and the public in general to be allowed. They also cite statistics that show that firearms are overwhelmingingly used in crimes in favor of other weapons.
However, what the anti-gun group fails to address is the needs of victims. While they austensibly argue that there will simply be fewer victims if there are fewer weapons they ignore the reality of the individual victims that will exist in any case. In essence they are sacrificing the victim today on faith that there will be fewer victims tomorrow. They do this depsite the fact that there is no clear indicator that such a result will occur. Criminals will continue to be criminals as has been shown throughout the history of the world. To say differently is to deny the reality that underlies the reasoning behind self-defense as a natural right.
In addition, the argument ignores the dignity of the individual. Instead it favors the safety of the collective whole without regard to the victim. Even more importantly, it stops the victim from stopping the aggressor and so the aggressor is free to harm society even more. Not only is the moral right to self-defense removed, but the moral obligation of self-defense is now hindered as well.
To-date the anti-gun establishment has controlled the debate over firearms by arguing that weapons pose a risk to the public as a whole and so they must be controlled through "reasonable laws". However, arguing on these grounds is pointless since it always relies on future events. Worse, since governments always prefer action to the status quo it is foolish to ask the government to simply leave things as they are.
A path forward for self-defense
Recent victories for self-defense through issuance of concealed weapons permits are a clear indicator that there is a way to defeat those who would stand against self-defense. The response is not one-sided, but is instead focussed on three separate fronts.
Dealing with those who oppose self-defense in the media
Those who advocate the abolition of firearms must show that they are not placing victims at an undue disadvantage in relation to their attackers. Self-defense is clearly recognized as a natural right by the law and the general population. By continually pointing out the reality that restrictions on handguns put individual victims more at risk in the face of their attackers we can illustrate how callous the anti-gun movement is to real victims. Discussions about "victims of handgun violence" are pointless since it does not deal with individual victims of violent crime who are either allowed or denied their natural right to self-defense through restrictive laws.
The law clearly cannot protect all unnatural and violent death in all circumstances. Therefore it is absolutely necessary that we allow individuals the right to defend themselves against unlawful aggression. Further, it is clear that the law provides sufficient protection against the absurd extremes posited by the anti-gun establishment in their attempts to undermine self-defense.
Legislation
Government is caught in a cycle where it must do something in order to appear that they are not doing anything about crime. The anti-gun advocates claim that guns are the cause of crime and so gun restrictions will reduce crime. This is relatively easy to legislate and gives politicians the appearance of taking action. Our response must be two-fold.
First, we must continue to fight unjust laws that clearly place victims at a disadvantage to aggressors. Further, that is exactly the language that must be used and the images that must be presented to ensure that the public fully understands the ramifications of such laws.
Second, bills must be presented to elected officials that "protect victims" by enshrining the right of self-defense and by protecting the weapons that make self-defense possible. As with recent victories in states where concealed carry it is not unreasonable to expect that similar legislative efforts will result in success.
Judicial
Courts often attempt to keep their rulings as focussed as possible on a single situation in order to avoid far-reaching laws with unintended consequences. The hope by both sides in the upcoming Supreme Court case that the court will make a sweeping ruling is not realistic. The court is more likely to make a narrow ruling on a narrow interpretation of the law in order to cause as little disruption as possible within the current government structures.
However, this does not mean that the courts cannot be of help. By focussing legal challenges upon the natural right of self-defense rather than on other grounds the courts must rule against self-defense and victims in order to establish more gun control. At best this will be a difficult proposition. As in the D.C. case the law was so written as to limit the right to self-defense to an unreasonable level. While the mandate of the second amendment is currently considered arguable the mandate of the natural right to self-defense is not. Laws, such as those passed in the District of Columbia, are so restrictive that they effectively strip the law-abiding citizen of the means of reasonable self-defense. Such laws are therefore unjust and the courts will have a difficult time ruling otherwise.
Final Thought
The right to self-defense is recognized because of the reality that government cannot provide universal protection for those under its umbrella. The anti-gun lobyists argue exactly the opposite - that government, with appropriate legislation, can protect its citizens in such a way that deadly force by the individual citizen will never be necessary. It is important for those who value freedom to understand that the only result of such a legislative course is complete control over the lives of the citizens of the land. It is doomed to fail for there is no safety in slavery.
1 comments:
Excellent post.
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