Friday, June 10, 2016

Second Amendment is About Self-Defense...against tyranny or foreign invaders.

What the Second Amendment really is about is insurance.  It is the most valuable insurance clause on the planet. It says that if you attempt to invade us, you will you have a big problem with an armed citizenry.  Take a look at the historical example with Japan and their likely fears of what would happen if they invaded the mainland of the United States (assuming they could ever had overcome the logistical and troop number problems).

Our troops in Okinawa, Japan on the eve of a main island invasion had to worry too but about a different armed citizenry.  The emperor was telling his subjects that they would be killed by the American invaders and to use pitchforks, shovels or whatever they had to defend themselves. Previously, before they were backed into the corner of what was remaining of their empire, the Japanese military knew better than to invade the west coast.  They would have had to worry about firearms hidden behind every door. America’s love, obsession, respect, or fetishism with firearms is a great warning sign to any potential invaders: Have gun, will travel….so you shouldn’t.

The self-defense concept within the Second Amendment also applies to our own government. It is an insurance policy making martial law or tyranny very unlikely. Of course, an armed militia of citizens can also lead to tyranny of the majority or mob rule, so we have a very delicate balance.  

Thursday, June 9, 2016

Un-Enumerated Rights: Bill of Rights isn’t an exhaustive list of rights

What most people forget is that the Bill of Rights isn’t an exhaustive list of rights. It was just the ones that the Founders compromised and traded on and felt were the most likely to be infringed upon by government. They just wanted to make it crystal clear for the government to back off of these rights. It isn’t an affirmative list of things you can do, but it is a partial list of what the government cannot infringe upon.

But back to the question of banning the right to self-defense addressed on June 8th ( The fact that we can ponder this question and leave it unanswered is proof positive that the Second Amendment is something more than personal self-defense against other citizens or simply about hunting.  

For starters, it only mentions “arms” and doesn’t give any explicit rights protecting the left cross or right jab in the face of a threat. 

When talking to jurors about the right to self-defense or to clients about the use of deadly force as a gun owner, I often discuss how do you know you are in the right when you shoot or punch.  The answer for me personally is this: If you have to think about what the police or jury would think if you pulled the trigger or threw a punch then the threat probably isn’t imminent, and it’s probably time to remove yourself from this situation. 

If you are too scared or preoccupied with surviving the next 10 seconds, then you are more likely authorized unless you are the unfortunate “unreasonable” person who overreacted. But as they say, it’s better to be judged by twelve than carried by six. 

However, I will say that after years as a trial lawyer and many trials involving self-defense and juries, my own personal perception of an imminent threat has almost caused me to react differently to a threat.  With two recent examples of an attempted assault on me, my mind was still racing to “what would a jury think?”  I almost transcended the moment and slowed down time to think out everything as if in slow motion and what the consequences were to words.  

Of course that’s another story, but it was the backdrop to my first meeting with Gerald Strebendt in 2014. I had been in physical altercations before on and off the rugby pitch and more than one as an adult/attorney. The reactions he described and the information he claimed to have shared on the 911 call made me, based on my personal experience and of reading thousands of police reports, excited that he was probably innocent but fearful that his reactions based on his years of training would inevitable result in an indictment for murder.  

An indictment was issued and we spent our time and resources looking for evidence that supported the statute.  There were no constitutional claims because there is no explicit constitutional right to self-defense, which I have always found strange considering how fundamental it is to the right to life.

Wednesday, June 8, 2016

Could “Self-Defense” Be Banned by a Legislature? (Second Amendment is Not Self Defense Right or the Right to Bear Sporting Goods)

The second amendment is not about a right to self-defense and is not a right to keep and bear sporting goods, i.e., guns for hunting.  With that as a premise, could a state ban “self-defense. The right to self-defense isn’t in the constitution. It is a creature of statute.  In the Oregon Revised Statutes a person has the right to use the reasonable degree of force they reasonably believe necessary to stop or prevent imminent unlawful force of another.  So, what if that statute was removed from the books?  Absent jury nullification, could a person be successfully prosecuted for assaulting her attacker in self-defense?   Or does a person have an inalienable right to self-defense in certain circumstances?

Self-Defense not in Constitution because it’s a natural right

If a legislature chose to remove that defense from the statutes, would we still have that right? Is that “right” included under the "penumbra" of rights that liberal judicial activists have created or is it something that transcends the “penumbra” and is an innate human right?  Or is that what judicial activists were actually saying regarding the “penumbra”--  that there are certain things the government can’t outlaw due to natural rights, i.e., a women’s right over her body (abortion), and, in this hypothetical, the right to self-defense.

What’s on your mind?

Some prosecutors mislead jurors into concluding that how a defendant feels emotionally at the time of the assault/self-defense claim is also a factor to their “state of mind” for self-defense. For instance, I have heard them argue to jurors that if someone is angry or acting out of anger that means they weren’t truly afraid and trying to defend themselves.  That simply is not true.  Anger and fear are not mutually exclusive and many anthropologists, psychologists, or evolutionary biologists will tell you that both emotions probably evolved from common stimuli.