The law of self-defence

The issue of Self-defence in regard to the Second Amendment is a real diversion. As I consistently point out, the term is not mentioned in the Second Amendment. Secondly, the use of deadly force is extremely limited in most jurisdictions. Of course, there are the “licence to murder” laws which change the common law concept of self-defence to make deadly force a first option.

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force would only be excused in situations of “extreme” danger. In other words, you must be threatened by deadly force to use deadly force. If the attacker can be stopped with a non-lethal agent (e.g., pepper spray), then you don’t have the right to use deadly force.

So, The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. On the other hand, you would be justified if you had been robbed by someone with a replica firearm or BB gun and shot the robber. But, if you were a black belt and disarmed the person, you would stand a better chance of getting off.

So, when an assailant ceases to be a threat (say, being tackled and restrained), the defense will fail if the defending party presses on to attack. One is justified in using enough force to stop the attach, but one cannot go beyond that force and become the aggressor. 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 wasn’t yet in enough danger to justify lethal force in the first place.

Some jurisdictions have a duty to retreat. This means that if you could back down, or run away, from the threat, you are not justified in using force. Of course, the duty of retreat 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 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 each man’s home is his safest refuge”). However, if one is “challenged” in a bar for a fight, accepting such challenge, instead of walking away, generally will not constitute a self defense.

Again, if one could deescalate the situation, but fails to do so, you cannot say that you acted in self-defence.

In some jurisdictions, the concept of “pre-emptive” self defense is limited by a requirement that the threat be imminent. Thus, lawful “pre-emptive” self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person. Again, the force used must only be that necessary to stop the threat.

The problem is that the RKBA crowd want to get more guns on the streets via liberalised CCW laws and the “licence to murder laws” which change the definiton of self-defence to allow for the use of deadly force in situations where it is not justifiable under common law.

No one has the right to deadly force, especially if one wishes to link this to the right of militia members to “keep and bear arms”. We have two separate concepts working here: Militia service and self-defence. Every common law jurisdiction has the heritage of these two concepts, yet other common law jurisdictions severely restrict the items which can be used for self-defence. Anyone who has been to England or Canada knows that things like pepper spray, mace, stun guns, and especially firearms and not allowed to be possessed for self-defence.

Another thing which I find odd, is that with all this talk about right to life, no one has brought in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms which defines the Right to Life as follows:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which it would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, [1971] AC 814:

The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. …Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

So, to argue that one has a right to arms for self-defence is a misunderstanding of the common-law concept of self-defence. One only has the right to use as much force is necessary to stop that threat. There is no right to use a firearm if a non-lethal alternative exists that can stop the attack (e.g., pepper spray).

Additionally, one can argue that the right to life means that one cannot be deprived “of life, liberty, or property, without due process of law.” The fifth Amendment specifically states this, which would put it in conflict with the Second Amendment if that allows for the use of deadly force without justification.

To argue that the Second Amendment allows for the ownership of firearms for self-defence is to take both the Second Amendment and the concept of self-defence totally out of context.

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