A Weapon for Self Defense: Criminal Law and Procedure

From 2000 to 2010, more than 20 states passed laws that make it easier to use lethal force in self-defense. Elements of these laws include removing the duty to retreat in places outside of one’s home, adding a presumption of reasonable belief of imminent harm, and removing civil liability for those acting under the law. This paper examines whether aiding self-defense in this way deters crime or, alternatively, increases homicide. To do so, we apply a difference-in-differences research design by exploiting the within-state variation in law adoption.

We find no evidence of deterrence; burglary, robbery, and aggravated assault are unaffected by the laws. On the other hand, we find that homicides are increased by around 8 percent, and that these homicides are largely classified by police as murder. This suggests that a primary consequence of strengthened self-defense law is a net increase in homicide. Finally, we present back-of-the-envelope calculations using evidence on the relative increase in reported justifiable homicide, along with assumptions about the degree and nature of underreporting, to assess whether the entire increase was legally justified. A Weapon for Self Defense

The following celebrities have stated his or her stance on gun control in the following quotes. Ted Nugent states, “To my mind [sic] it is wholly irresponsible to go into the world incapable of preventing violence, injury, crime, and death. How feeble is the mindset to accept defenselessness? How unnatural. How cheap. How cowardly. How pathetic. (Buckeye Firearms Association 2009). Clint Eastwood also states, “I have a strict gun control policy: if there is a gun around, I want to be in control of it. ” (Buckeye Firearms Association 2009). Finally, James Earl Jones was quoted as saying, “The world is filled with violence.

Because criminals carry guns, we decent law-abiding citizens should also have guns. Otherwise [sic] they will win and the decent people will lose. ” (Buckeye Firearms Association 2009). Are these quotes to be considered opinionated views? Perhaps, but each is logical and valid. Should law-abiding citizens have the option to own and carry a gun for the use of self-defense? The answer is yes. While gun control advocates fight for stricter gun control laws; anti-gun control supporters believe that stricter gun control laws will limit and prohibit a citizen’s Constitutional right to “keep and bear arms”.

There are enough xtensive gun control laws already. Creating and passing stricter gun control laws would only make it more difficult for law-abiding citizens to protect his or herself. Self-Defense Guns are used 2. 5 million times a year in self-defense. What is this organization and who are they to provide such a startling statistic? The Gun Owners of America is an organization created in 1975 and currently has 300,000 members. Gun Owners of America was founded, “to preserve and defend the Second Amendment rights of gun owners. With a statistic like that, what law-abiding citizen would not want to own a gun for self-defense.

In the United States, the defense of self-defense allows a person to use reasonable force in his or her own defense or the defense of others (see the theoretical background for why this is allowed). While the definitions vary from state to state, the general rule makes an important distinction between the use of non-deadly and deadly force. A person may use non-deadly force to prevent imminent injury; however, a person may not use deadly force unless that person is in reasonable fear of serious injury or death. Some states also include a duty to retreat, when deadly force may only be used if the person is unable to safely retreat.

A person is generally not obligated to retreat if in one’s own home in what has been called the castle exception (from the expression “A man’s home is his castle”). The early theories make no distinction between defense of the person and defense of property. Whether consciously or not, this builds on the Roman Law principle of dominium where any attack on the members of the family or the property it owned was a personal attack on the pater familias – the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age. 1] In Leviathan (1651), Hobbes proposed the foundation political theory that distinguishes between a state of nature where there is no authority and a modern state.

Hobbes argues that although some may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death, which justifies self-defense as the highest necessity. In the Two Treatises of Government, John Locke asserts the reason why an owner would give up their autonomy: .. the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.

In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people actually inside or an indirect assault on their welfare by depriving them of shelter and/or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of sovereignty, in his 1918 speech Politik als Beruf (Politics as a Vocation), Max Weber defined a state as an authority claiming the monopoly on the legitimate use of physical force within defined territorial boundaries.

Recognizing that the modern framework of nations has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded. For modern theorists, the question of self-defense is one of moral authority within the nation to set the limits to obedience to the state and its laws given the pervasive dangers in a world full of weapons.

In modern societies, states are increasingly delegating or privatizing their coercive powers to corporate providers of security services either to supplement or replace components within the power hierarchy. The fact that states no longer claim a monopoly to police within their borders, enhances the argument that individuals may exercise a right or privilege to use violence in their own defense. Indeed, modern libertarianism characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of elf-defense from coercion (including violence) is a fundamental human right, and in all cases, with no exceptions, justifies all uses of violence stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12 Universal Declaration of Human Rights states: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks. The inclusion of defense of one’s family and home recognizes the universal benefit claimed to stem from the family’s peaceable possession of private property. This general approach implicitly attacks Hohfeld’s focus on the correlative relationship between right and duty as an aspect of human interactiveness as opposed to rights deemed implicitly more important because they attach to a person by virtue of his or her ownership of property.

Further, it follows that, in this moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or injury, but decriminalize qualitatively identical violence causing loss or injury because it is used in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld, Robert Nozick asserted that there are no positive civil rights, only rights to property and the right of autonomy.

In this theory, the “acquisition principle” states that people are entitled to defend and retain all holdings acquired in a just way and the “rectification principle” requires that any violation of the first principle be repaired by returning holdings to their rightful owners as a “one time” redistribution. Hence, in default of self-defense in the first instance, any damage to property must be made good either in kind or by value.

Similarly, theorists such as George Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal theories to justify the right-holder using all necessary force to defend his or her autonomy and rights. This right inverts the felicitation principle of utilitarianism with the responsive violence being the greatest good to the individual, but accurately mirrors Jeremy Bentham who saw property as the driving force to enable individuals to enhance their utilities through stable investment and trade.

In liberal theory, therefore, to maximise the utility, there is no need to retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when initiating the attack. In this respect, the criminal law is not the tool of a welfare state which offers a safety net for all when they are injured. Nevertheless, some limits must be recognized as where a minor initial attack simply becomes a pretext for an excessively violent response. The civil law systems have a theory of “abuse of right” to explain denial of justification in such extreme cases.

In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for an act of violence. It acts to provide complete justification. “Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. ” [2] The defense of justification (Penal Law art. 35) affirmatively permits the use of force under certain circumstances… The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime.

Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful… In this regard, the current statutory defense reflects the common-law “right” of an individual to repel a threat to life or limb… Defense of oneself or one’s relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful. [3] The defense of justification would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat.

However, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person. [citation needed] ‘Property’ is more than just the physical thing—the land, the bricks, the mortar—it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial.

Without this right all other elements would be of little value. ‘[4] The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession. “[5] In Cross v. State, [6] the Court found that the Due Process of Law clause in the state constitution guaranteed “the inherent and inalienable right to protect property. ”

However, when an assailant ceases to be a threat (e. g. by being tackled and restrained, surrendering, or fleeing), the defense of justification will fail if the defending party presses on to attack or to punish beyond imposing physical restraint. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant was not yet in enough danger to justify lethal force in the first place.

Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception (see: Edward Coke) which argues that one cannot be expected to retreat from one’s own home, namely, “a man’s house is his castle, et domus sua cuique est tutissimum refugium” i. e. Latin for “and one’s home is the safest refuge”).

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