Of Arms and the Law

Navigation
About Me
Contact Me
Archives
XML Feed
Home


Law Review Articles
Firearm Owner's Protection Act
Armed Citizens, Citizen Armies
2nd Amendment & Historiography
The Lecture Notes of St. George Tucker
Original Popular Understanding of the 14th Amendment
Originalism and its Tools


2nd Amendment Discussions

1982 Senate Judiciary Comm. Report
2004 Dept of Justice Report
US v. Emerson (5th Cir. 2001)

Click here to join the NRA (or renew your membership) online! Special discount: annual membership $25 (reg. $35) for a great magazine and benefits.

Recommended Websites
Ammo.com, deals on ammunition
Scopesfield: rifle scope guide
Ohioans for Concealed Carry
Clean Up ATF (heartburn for headquarters)
Concealed Carry Today
Knives Infinity, blades of all types
Buckeye Firearms Association
NFA Owners' Association
Leatherman Multi-tools And Knives
The Nuge Board
Dave Kopel
Steve Halbrook
Gunblog community
Dave Hardy
Bardwell's NFA Page
2nd Amendment Documentary
Clayton Cramer
Constitutional Classics
Law Reviews
NRA news online
Sporting Outdoors blog
Blogroll
Instapundit
Upland Feathers
Instapunk
Volokh Conspiracy
Alphecca
Gun Rights
Gun Trust Lawyer NFA blog
The Big Bore Chronicles
Good for the Country
Knife Rights.org
Geeks with Guns
Hugh Hewitt
How Appealing
Moorewatch
Moorelies
The Price of Liberty
Search
Email Subscription
Enter your email address:

Delivered by FeedBurner

 

Credits
Powered by Movable Type 6.8.7
Site Design by Sekimori

« Another from the 9th Circuit | Main | Latest Alec Baldwin excuse »

Revolt against proportionality in self-defence

Posted by David Hardy · 1 December 2021 11:26 AM

A paper by Prof. Renee Lerner, of George Washington Univ. law school.

Its theme: self-defense is an area where the views of the legal elite and the rest of the population collide. In the eyes of the legal elite (and thus the law), the lives of the aggressor and of the defender have equal or almost equal value. Thus the defender can only use lethal force if he reasonably fears that the aggressor is about to use the same force; the tie goes to the runner, or the defender, but otherwise they are equal.

To the rest of the world's population, tho, they are not at all of equal value. The life of a burglar and of a good citizen homeowner are not at all of equal value, nor are those of a person minding their own business and someone who attacks and tries to do them harm. Years ago, a local prosecutor told me that he'd told his boss they might as well give up prosecuting homeowners who shot fleeing burglars in the back. It was illegal, but they'd had three cases of that type and lost three jury verdicts in a row, and if juries will not convict, then it is legal in the real world, regardless of what the statutes say.

Her paper has an interesting point; many European codes are actually more liberal toward the defender than is American law. And some have provisions that, if the court finds the defendant hasn't proven self-defense, but they acted under a state of mind that was motivated by the fear or anger caused by the attacker, then the charge is reduced. They shouldn't have done it, but still the aggressor bears a good part of the blame.

4 Comments | Leave a comment

Mike-SMO | December 1, 2021 10:02 PM | Reply

That "presumption" and "proportionality" go into fantasies about what a perpetrator might or might not have done if the victim hadn't resisted. He was just taking "property", while ignoring the number of witnesses who get dead, or the overpowered victims who get raped or kidnapped.

I have no obligation to assume goodness in an individual who is showing that he is a "bad" law breaker. I do not have to depend on the "mercy" of an individual who is showing no mercy in an attack. I would be a fool to do so.

"Unarmed" means I will get beaten to death by an individual with greater strength or who finds something he can use as a weapon against me.

Old Jarhead | December 2, 2021 9:30 AM | Reply

The whole question seems based in the supposed "equality" of rights. It is as if the the aggressor had as much right to to the deed as the defender has to oppose it.
I was reminded of this anecdote:


"When I was in law school, an elderly professor told a story about a Texas Judge from long ago who was chided about the fact that in Texas the penalty for second degree murder was a shorter prison sentence than horse stealing.  The judge’s response professor Rhodes told me was 'We got some folks down here that need killin’, we don't have any horses that need stealing'.”

from a blog by Kent Mitchell

Anonymous | December 2, 2021 9:40 AM | Reply

Mr. Hardy,

I have only thusfar read the Introduction and its footnotes.

Thank you for sharing this paper.

Of course, much has likely changed in 14 years and I am wondering if you have already come across other related and more current papers ?

Finally, as you imply in the second paragraph above, jury nullification is an element of the discussion of self defense laws. While Prof. Lerner's Introduction does not (that I noted) touch on such, are you aware of others who have explored the interaction among those two facets of prosecutions of those claiming "self-defense" ?

Fyooz | December 2, 2021 2:24 PM | Reply

Lerner also wrote an article comparing substantial and procedural rights, it appeared and was criticized on Volokh Conspiracy just over a month ago.

Useful lens. Not comprehensive, but useful.

Leave a comment