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?
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.
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.