Just curious about the “get away with murder” laws

Yet another wrinkle in the assertion that the Second Amendment in some way allows for “self-Defence”:

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

The general common law principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonably or not). The jury should be directed to look at the particular facts and circumstances of the case in deciding whether a defendant had used only reasonable force.  After all, the defendant will always be of the opinion he used reasonable force.

Only reasonable force may be used.  Despite a common belief to the contrary, one is not at liberty to shoot dead a burglar wandering around one’s house if one does not fear for one’s own life in common law.

Anyway, historically Clause 39 of Magna Carta provided:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This came into US law via the Due Process guarantees of the US Constitution found in the Fifth and Fourteenth Amendments.
The Fifth Amendment to the United States Constitution provides:

[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law .

The Fourteenth Amendment to the United States Constitution provides:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law .

The issue here is that these laws allow for summary justice and vigilantism outside of the legal process.  One should not take the law into his/her own hands for the purposes of revenge, retribution, or sheer vigilantism.  The rule of law must be maintained and violence discouraged by a proper legal system for it to have any authority.

Of course, this is just a musing, but perhaps it will be taken up by someone else who is offended by the allowance of murder by an out of whack US legal system.

Additional thoughts on this topic:

I should have mentioned the concept of wergild, which was a value placed on every human being and every piece of property in the Salic Code. If property was stolen, or someone was injured or killed, the guilty person would have to pay weregild as restitution to the victim’s family or to the owner of the property.

The important aspect of this was that the payment of weregild performed an important legal mechanism in early Germanic society since the other common form of legal reparation at this time was blood revenge.

The foundation of the American legal system rests on the Rule of Law, a concept embodied in the notion that the United States is a nation of laws and not of men. Under the rule of law, laws are thought to exist independent of, and separate from, human will. Even when the human element factors into legal decision making, the decision maker is expected to be constrained by the law in making his or her decision. In other words, police officers, judges, and juries should act according to the law and not according to their personal preferences or private agendas.

Vigilantism is the people’s complete disregard for the rule of law. The problem is that vigilantes risk starting a cycle of violence and lawlessness in which the victims of vigilantism take the law into their own hands to exact pay-back.

There is a reason that Clause 29 of Magna Charta provided that:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

These laws are a denial of justice and right which has been sanctioned by the state.

There is a reason that the force used for self-defence is that which is reasonable to stop the threat yet respecting life.

And justice.    There is a long case line that works to promote the rule of law and discourage vigilantism in the Common Law (and other legal systems)

Further clarification:

Another statement of the concept of due process guaranteed by the US Constitution’s  Fifth and Fourteenth Amendments.

The Human Rights Act 1998 incorporates into English law Article 2 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.”

en.wikipedia.org/wiki/European_Convention_on_Human_Rights#Article_2_-_life

Advertisements
%d bloggers like this: