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.  

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 (http://snip.ly/ban-self-defense). 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.

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.  

All Lawyers Are in Sales: Attorney marketing is competitive just like the courtroom

Lawyers sell themselves to potential law employers to be hired.

Lawyers sell themselves to potential clients to be hired.

Lawyers sell their case strengths and settlement positions to adverse counsel to resolve cases.

Lawyers sell their legal arguments to judges to win motions.

Lawyers sell their cases to juries to win trials.

The old guard attorneys that have been retiring from practice over the last decade often see attorney marketing as shameful. However, they never needed to do it due to a high demand for lawyers and a low supply of lawyers when they started practicing. In otherwords, they were the only show in town when they made their mark.

Modern law practice is very competetive and requires sophisticated analysis of marketing trends.  The sales terms of "leads," "prospects," and "conversions" have become part of attorney vernacular.

While the traditional "low information" client back in the old guard days was impressed by fancy office furnishings, modern clients come to the initial attorney consultation informed by Internet searches.  They are in turn impressed by the information on a law firm's website and how good it looks. Clients know that if they aren't impressed by the firm's powers of marketing persuasion, the courtroom skill set just might not be there.

To survive in this modern world, attorneys must embrace this lawyer-salesman mindset. There is no shame in marketing with class and soft selling one's law firm to clients. Tacky TV ads are not the only option.  But there are options and they are many.

The possible places to spend attorney marketing funds are limitless and the attorney must be sophisticated or money is wasted. Many that you have to earn by the "point one." This is why the field of attorney marketing advisors has taken off.

It is very dangerous to rely solely on the advice of your ad rep from a particular company, as they have a vested interest in selling their product to you.  Instead, consider hiring a traditional marketing firm for advice. Or better yet, hire an attorney marketing consultant.  Spending money to educate yourself on the limitless marketing possibilities before committing marketing dollars is wise.

Remember, we scorn clients for pro se mistakes all the time. They truly get what they pay for. And so do we. Let's get advise from the experts. An attorney who is marketing himself truly has a fool for a client.

- Mike Arnold is the managing partner of Arnold Law in Eugene, Oregon. He is the firm's lead jury trial counsel and leads the firm's business practice decisions. 

Citizens are safer today because of GPS ruling

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

In today's opinion in united states v. Jones, the Supreme Court unanimously ruled that common-law trespass rules govern the plain meaning of the fourth amendment. There is no need to analyze using the "reasonable expectation of privacy test" when a trespass analysis can be applied. This is a throwback to earlier styles of analysis that predate the 21st century jurisprudence of the Supreme Court.

By Mike Arnold, attorney at Law
Eugene, Oregon
(dictated from my iPhone)

Beware of redacting PDF files - the curse of the cut and paste

A federal judge wrote an opinion with redacted information about Apple which was subject to an order to seal.  However, when anyone copied and pasted the text, the redacted info showed up. The perils of technology and a lesson for folks outside the legal field.

One way we prevent redacted info from being viewable is to print the page and then scan it back to PDF. It's a primitive solution but is pretty much idiot proof.

Mike Arnold,
Attorney at Law
Arnold Law Office, LLC
Eugene, Oregon

Can a officer stop a driver for hitting a deer?

http://www.registerguard.com/web/updates/27440837-55/marijuana-trooper-car-deer-police.html.csp.

A driver hits a deer with his car. He doesn't stop. Officer observes the collision and then pulls them over for hitting the deer not stopping.

Interesting issue. Is there an affirmative duty to pull over if you hit a deer? I suppose it is property damage of the king's traditionally speaking. In essence all wildlife is the property of the state of Oregon.

Of course if the driver was driving carelessly or recklessly the officer could've pulled him over for that.

(Dictated into my iPhone and not reviewed.)