I'm going to echo the Barons sentiments here - James doesn't right to life and security of person include some form of self defense if those are threatened?
The Right to Self Defense
- Thread starter madanthonywayne
- Start date
I'm going to echo the Barons sentiments here - James doesn't right to life and security of person include some form of self defense if those are threatened?
Remember the episode of The Sopranos where Tony was depressed? What brought him out of it? An attempt on his life. Suddenly, he realized he wanted to live. He fought off the attackers and then had a new lease on life.
Buut what if your state does not protect your rights or even worse tries to take away one of the other rights enumerated? So should those inmates at Guantanamo merely accept their condition until they can bring charges before the World Court (or whatever gov't they belong to)?
It seems to me that people do have a fundamental right to protect their rights that extends to revolution if necessary. Even from a moral perspective, I don't believe a moral system that is not based on the idea of reciprocity (i.e., I respect the rights of others because the majority of other people will respect mine) will really work.
Unfathomable even.
Do you mean the US as a country or the individual people living here? Because I know quite a few people just within the neighborhood I live in right now who have been shot just within the last year. My little sister found a human jawbone in a backyard 2 apartments down. I, myself have been jumped by crackheads many times in the past. I live in a relatively small city where the police have assault rifles and there's tons of deaths from voilent crimes in te newspaper everyday. How are any of these threats imagined?
So we have the privilege to defend ourselves? Do we need to earn that privilege aswell?
So you voted with James because you believe there is no such thing as human rights? I guess that makes more sense than Jame's position (that we have rights but no right to defend them).
Pandaemoni
Valued Senior Member
I basically agree with that. "Rights" are just a listing of things some people think you ought to be able to enforce, or, in certain contexts are able to enforce.
In both cases, rights are something that exost solely to the extent that others around you agree they exist. You may wish you had the right to life, for example, but live in the wrong century or country or turn down the wrong alley and you'll find that that doesn't mean squat. You have the right to live only because the system gives you that right and has mechanisms to enforce it (one of which is sometimes violent self-defense).
This thread seems a bit confused though, in that some people are claiming that all rights only to the extent you get to defend it (with which I agree), but assuming that violence is the only means of defense. I have a right to free speech too, but I don't get to kill anyone who tries to prhiobit my exercise of it. The right to life can be enforced by courts and through social opprobrium directed at my killer, just like the right to free speech can.
"Self-defense" in this context clearly means the right to commit acts of violence in defense of other rights, and it's not logically required for the right to life to exist. It may be preferable for it to exist as a means of proactively preventing the deprivation of life, but that's not the same thing.
Personally I always thought the "duty to retreat" made perfect sense in the law, so I don't really understand Baron's opposition to that as a concept (then again, he's pro-honor dueling, so perhaps I do).
Bells
Staff member
You have a right to life. That is fundamental. If said life is threatened, you have a right to defend yourself. However, self defense in itself (and on its own), is not a fundamental right. It is merely a right. The interpretation is broad and ambiguous.
Now since your right to life is fundamental, some could argue that their right to defend it is fundamental. As I said, the interpretation is ambiguous.
For example, would you say that a person on death row, has a right to kill the executioner in self defense because said executioner is about to take away his fundamental right to life? If you view self defense as a fundamental right, then the person on death row would be well within his rights to defend himself against the individual about to press the button. The prisoner is only allowed to defend himself through the judicial system. This is where it becomes ambiguous. If self defense were to be a fundamental right, then the inmate would have a right to defend himself as the situation saw fit, through and with whatever means available. But we restrict his ability to do so by stating he can only defend himself through legal means, as in through the judicial system (that being the courts). In that, self defense is not a fundamental right. Merely a right.
If self defense were to be a fundamental right, it would be available to everyone equally and without restriction, including the inmates on death row. But it is not. If someone comes at you with the intent to kill you, you would be allowed to defend yourself as the situation saw fit, in that you could kill the other to save your own life. An inmate on death row is not allowed to do this. I did say it was ambiguous.
Last edited:
Learned Hand
Registered Senior Member
As a lawyer and legal scholar, I must remark that the U.S. Constitution does not "create" a fundamental right known as self-defense. The rights described by our Constitution are both negative and positive, or stated differently, disallowed or granted. The Bill of Rights, the first 10 ammendments, are negative rights. They expressly PREVENT a fundamental right to be taken away. Articles I-III are all positive, GRANTING a power to the government over the people.
Most states in the Union have what's called common law (or as non-lawyers would understand it, "judge made law.") It is derived principally, and borrowed exclusively from the common courts of England (hence "common law"). Common law, which varies nominally to exponentially between states, is to be contrasted with statutory law. Statutes are laws enacted by Congress or state legislatures, and may trump the common law, but only to the extent that the statute does not impair a fundamental (i.e. constitutional) law.
As a generality, common law provides a right to claim self-defense in any action brought under federal or state statutory law for offenses against the person, and more specifically, where life or limb is in jeopardy. Constitutionally, the 14th Amendment requires that due process be provided, and extends such requirement to the states. Hence, if a prosecutor wishes to challenge the defense of self-defense as unconstitutional, he will not succeed, as the common law is so well settled on the issue that any state supreme court would laugh at the notion today.
However, should a statute be passed by Congress or state government which abrogates (gets rid of/changes) the common law to remove self-defense (which to me is as laughable as requiring Alaska to grow coconuts), the fundamental right of due process and/or habeas corpus would require a judicial review. In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.
In effect, not only the constitution, but the common law itself, carries with it certain "fundamental rights" which simply cannot be circumvented or overturned. Notice that I did not say limited. If someone comes at you with their fists, you cannot use a gun and expect self defense to be viable. Thus, the right is limited, and can be narrowly tailored to reach the least restrictive goal.
Now, returning briefly to negative and positive constitutional rights, if the constitution does not speak as to issues involving positive or negative rights, the common law is to be implied as the fundamental right of the people. Can it ever be changed? Most certainly: but only so long as it does not impede upon a positive or negative constitutional right.
Ultimately, therefore, self-defense remains a fundamental right in the U.S.
Most states in the Union have what's called common law (or as non-lawyers would understand it, "judge made law.") It is derived principally, and borrowed exclusively from the common courts of England (hence "common law"). Common law, which varies nominally to exponentially between states, is to be contrasted with statutory law. Statutes are laws enacted by Congress or state legislatures, and may trump the common law, but only to the extent that the statute does not impair a fundamental (i.e. constitutional) law.
As a generality, common law provides a right to claim self-defense in any action brought under federal or state statutory law for offenses against the person, and more specifically, where life or limb is in jeopardy. Constitutionally, the 14th Amendment requires that due process be provided, and extends such requirement to the states. Hence, if a prosecutor wishes to challenge the defense of self-defense as unconstitutional, he will not succeed, as the common law is so well settled on the issue that any state supreme court would laugh at the notion today.
However, should a statute be passed by Congress or state government which abrogates (gets rid of/changes) the common law to remove self-defense (which to me is as laughable as requiring Alaska to grow coconuts), the fundamental right of due process and/or habeas corpus would require a judicial review. In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.
In effect, not only the constitution, but the common law itself, carries with it certain "fundamental rights" which simply cannot be circumvented or overturned. Notice that I did not say limited. If someone comes at you with their fists, you cannot use a gun and expect self defense to be viable. Thus, the right is limited, and can be narrowly tailored to reach the least restrictive goal.
Now, returning briefly to negative and positive constitutional rights, if the constitution does not speak as to issues involving positive or negative rights, the common law is to be implied as the fundamental right of the people. Can it ever be changed? Most certainly: but only so long as it does not impede upon a positive or negative constitutional right.
Ultimately, therefore, self-defense remains a fundamental right in the U.S.
So if a huge, mean, vicious, strong man were to attack a little, tiny, weakling of a man, the little guy would just have to accept getting beaten to death in the eyes of the law? Surely you jest, right?
But please remember, that several states have the new "Castle Doctrine" law, or "Right to Self-Defense" law, so essentially that negates most of what you say in your well-written and informative post.
Baron Max
Its only ambiguous if you believe in capital punishment.
Now that's absurd. The criminal lost his rights after being found guilty by a jury of his peers by a court of law. Any right can be denied you or taken away, that doesn't mean the right doesn't exist. Does the right to property mean we don't have to pay taxes or fines?
Learned Hand
Registered Senior Member
That's why I said limited. What amount of force would be reasonable under the circumstances is a factual issue to be determined by the jury in a trial for murder, battery, manslaughter, etc. The 12 jurors decide reasonability of force.
The Castle Doctrine is not new, and is not statutory. It's been around the common law since at least the 17th century, which is why it's referred to as the castle doctrine, and can find root in ancient Roman law. As a matter of common law, "a man's house is his castle, and any invader may be shot dead without fear of criminal prosecution." It follows on the presumption that an owner of a house (or castle, as the case may be) should not have to ascertain an intruder's intentions before he uses deadly force. In other words, the law says it's absurd to say "halt, why are you here?" and then interrogate as he starts to burglarize, rape, injure, mame the members of your family, including yourself.
Some states did not follow the common law on house intruders, as their state supreme courts thought more conservatively (or liberally depending on the century) than others. Thus, some states are reacquainting themselves with a doctrine which is actually very, very old.
Florida recently passed a "stand your ground" law that says you may shoot the bad guys dead even when not in your home with no duty to flee.
Learned Hand
Registered Senior Member
That could be a definite constitutional problem. There must be room for substantive and procedural due process.
Bells
Staff member
Ah, but a fundamental right cannot have limitations set upon it. A criminal does not lose his or her fundamental rights if they are convicted of a crime by a jury of their peers. A fundamental right cannot be removed from any individual. That is what makes it fundamental.
You have a right to self defense. But that right is not fundamental. It is merely a right.
Then, by your definition, there are no fundamental rights. Indeed , there is no fundamental anything.
But you are mistaken. A fundamental right is simply a basic right. A right that is central to the idea of human rights. A right few people would dispute.
And, as the poll reveals, few would dispute that we have a right to self defense.