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.


  1. I appreciate your willingness to share your thoughts publicly.