Archive for the ‘Common law’ Category

BBC and its rerun policy

Not sure why the BBC isn’t rerunning Banksy’s Alternativity this year. Also annoyed that it is not available to watch online. I am tempted to post it on Youtube just to get it back out there since it needs to be SEEN.

On the other hand, if the BBC programming folk are interested in a suggestion for a rerun: The Last Duel has my vote. It was first broadcast in 2008. The last broadcast was in 2010. They have been rerunning a lot of things, but this one has been missed. It’s based on Eric Jager’s book, The Last Duel: A True Story of Crime, Scandal, and Trial by Combat in Medieval France.

BBC’s description of the programme is:

Drama-documentary telling the story of one of the last trials by battle to be fought in Europe, a tale of sex, brutality and political machination set in 14th century medieval France.

A knight, Sir Jean de Carrouges, accuses his former best friend, Jacques Le Gris, of raping his wife Marguerite. Unable to obtain justice from his feudal overlord, Carrouges appeals to the king for the ancient right to fight a duel to the death to find out God’s truth. There is much at stake. If Carrouges dies in the battle, Marguerite will also be burned to death as a liar.

This tense story, told from records of the day, is set against the backdrop of the 100 years war between England and France, 14th century attitudes towards women, crime and punishment and the political intrigues of the feudal system.

While I wouldn’t mind either being rerun, the Last Duel definitely has my vote.

As for Banksy’s Alternativity: I’m surprised he hasn’t posted it on Youtube. If Banksy or any of his minions see this and tell me it’s OK to post it, I will.

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Where were the SAS when we really could have used them?

This is a reference to Operation Flavius, the incident where SAS troopers shot and killed three terrorists on Gibraltar which was characterised as an ‘execution’ with no attempt to arrest the IRA members by the ITV programme Death on the Rock. There are allegations that the SAS had a shoot to kill policy against IRA terrorists.

Now, thinking about it, the entire idea that there was a right to armed self-defence is silly if we think about the armed thugs who called themselves “patriots” that existed at the time of the War for American Independence who ran around destroying property or tarring and feathering British Officials who were just doing their jobs. I mean shouldn’t a British Tax collector who had legal authority have some sort of firearm for self-defence in this type of situation? Wouldn’t they be justified in using them when they were being attacked by an angry mob?

Unfortunately, that wasn’t the case! Take for example:

The Boston Massacre which was an incident that led to the deaths of five “civilians” (actually rioters) at the hands of British troops on March 5, 1770. 7 British squaddies and their officer were surrounded by a lawless, angry, and violent mob intent on harm. The soldiers were simply keeping guard and trying to keep the peace. One of the riotous attackers threw a club at private Hugh Montgomery, knocking him off his feet. Rising, Montgomery fired a shot into the air. He was stricken again with a club and Montgomery had no choice but to point his gun at the attacker, Richard Palmes who quickly fled. At the same time another soldier Private Matthew Killroy pointed his musket at the other two attackers, Edward Langford and Samuel Gray. “God damn you, don’t fire!” Gray called out.The anger and the fear of being beaten by a club like his fellow solder, private Killroy pulled the trigger and mortally wounded Gray. More shots were fired and more rioters fell to the ground wounded or dead, leaving the aftermath of 5 dead and 6 wounded civilians.

Gray deserved to be shot! The soldiers fired in self-defense. The thugs threw stones, bricks, and oyster-shells at the soldiers. A club-wielding man knocked down one of the soldiers. The soldiers were in fear of serious bodily injury or death, they had a right to fire their weapons.

Guess what, the British soldiers found themselves on trial because the use of a firearm against an attacker, even an armed and violently riotous one, was excessive force. Despite this fact, any possibility of a fair trial in Boston was impossible. Josiah Quincy and John Adams (yes, that John Adams) took it upon themselves to defend the soldiers. The justice prevailed and the jury vindicated the British regulars. Preston and his four men were fully acquitted and the other two solders were found guilty of lesser charges and sent back to England.

Now if they had CS gas back in 1770…

Likewise, 3 years later, a merchant vessel carrying tea was left unguarded in the same town and country with its reputation for mob violence. Now, wouldn’t any self-respecting merchant have an armed crew, or even better either something like the 18th Century equivalent of Blackwater (or XE as it is now known) guarding his vessel knowing that the inhabitants of Boston were far from “law abiding”? Nope. Again, a gang of a hundred or so thugs violently deprived their countrymen of access to desirable goods to which the gang had not the slightest claim of ownership.

Again, you could imagine the screams if the law abiding merchant or his employees pulled a Harry Bennett and opened fire on the hooligans! Even better if they could have done so with machineguns as did Bennett! Not that the hooligans wouldn’t have deserved getting shot for their illegal activites. In fact, the uppity locals would have been much better behaved if the British and Loyalists had fought back more frequently, let alone would have shot and killed the useless rebels.

Anyway, here is what those wimpy patriots had to say in their silly “Declaration of Independence” even without proper enforcement of the law by the systematic killing of the useless thugs who fashioned themselved “Patriots” by armed Loyalist hit squads:

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

For quartering large bodies of armed troops among us

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

I mean, really, think of the screams if there had been something like the SAS to asassinate the likes of Sam Adams, Patrick Henry, George Washington, Benjamin Franklin, Thomas Paine (the most deserving of a bullet to the skull), and so on! Although, I am sure most of these people (Paine, a professional agitator excepted) would be easily converted if they were able to see the nation that resulted from their foolishness. They would be appalled by what this country has become with RKBA and teabagging ninnies (although Franklin would like teabagging of the sexual kind).

Seriously, here is a rebellious mob complaining about “plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people”. I mean, seriously, they were fighting lawful authority. They had it coming to them.

I mean if there was ever a case for self-defence by law abiding citizens loyal to the King, the War for American Independence was it! This was a case of terrorism and the “patriots” should have been treated like the terrorists they were.

No Duty to Retreat: Violence and Values in American History and Society

No Duty to Retreat: Violence and Values in American History and Society by Richard Maxwell Brown

Product Description

In 1865, Wild Bill Hickok killed Dave Tutt in a Missouri public square in the West’s first notable “walkdown.” One hundred and twenty-nine years later, Bernhard Goetz shot four threatening young men in a New York subway car. Apart from gunfire, what could the two events possibly have in common? Goetz, writes Richard Maxwell Brown, was acquitted of wrongdoing in the spirit of a uniquely American view of self-defense, a view forged in frontier gunfights like Hickok’s. When faced with a deadly threat, we have the right to stand our ground and fight. We have no duty to retreat.

No Duty to Retreat offers an engrossing account of how this idea of self-defense emerged, focusing in particular on the gunfights of the frontier and their impact on our legal traditions. The right to stand one’s ground, Brown tells us, appeared relatively recently. Under English common law, the threatened party had a legal duty to retreat “to the wall” before fighting back. But from the nineteenth century on, such authorities as Justice Oliver Wendell Holmes rejected this doctrine as unsuited to both the American mind and the age of firearms. Brown sketches the influence of frontier violence, demonstrating the tremendous impact of the famous gunmen and the prevalence of what he calls “grassroots gunfighters”–unsung men who resorted to their guns at a moment’s notice. These duels, ambushes, and firefights, he writes, were more than personal vendettas: They were part of a “Western Civil War of Incorporation,” pitting gunmen–usually Republicans and Unionists, who sided with the expanding banks, railroads, and businesses–against cowboys and independent farmers, who were often Democrats sympathizing with the Confederacy. Brown examines the gunfight near the O.K. Corral in this light, showing how it was a climax of tensions between Tombstone’s Republican businessmen (represented by Wyatt Earp) and the county’s cowboys (led by the Clantons and McLaurys). He also looks at such lesser-known battles as the Mussel Slough war, in which resisting farmers, imbued with the no-retreat ethic, fought for their independent lifestyle against encroaching rail barons. This Civil War of Incorporation fed the violence of the West and reinforced the legal doctrine of “no duty to retreat.”

The frontier days are long past, but Brown shows how the ethic of no retreat continues to shape everything from our entertainment to our foreign policy (including President Bush’s “line drawn in the sand”) to our politics to cases like that of Bernhard Goetz. Though challenged as never before by the values of peace and social activism, it remains a central theme in American thought and character.

Again, any duty to not retreat would come much later than the time of the drafting of the US Bill of Rights. Dave Kopel’s self-defence cases date from 1893 to 1896, over 100 years after the US Bill of Rights was drafted.

Interesting how these cases come in the period after the US Civil War as that is the period that Michael Bellesisles claims the US gun culture “began”.

William Blackstone and the Second Amendment

I had an interesting banter with someone who purports to be a “Second Amendment Scholar” who said that Blackstone ‘called it the “fifth auxillary right” of Englishmen’ in reaction to my question about “where is Self-defence mentioned in the Second Amendment?”


Blackstone being Commentaries on the Laws of England. The four volumes of the Commentaries were first published between 1765 and 1769 in Oxford and first issued in an American edition in 1771.

Blackstone would be appalled to be cited as an authority in this matter and even more appalled in how he is used in the DC v. Heller opinion for the reasons I will mention in this.

I can point out a multitude of points why citing Blackstone is incorrect.

First off, it is a text book, which means it isn’t even law in England. Never has been and never will. The “Second Amendment Scholar” should have read the whole wikipedia article before making a dumb statement about its being used as an authority by the Supreme Court: the United States Supreme Court quotes from Blackstone’s work whenever they wish to engage in historical discussion that goes back that far (Colonial times), or further.

2) The title and dates of publication give you another two, Blackstone’s Commentaries on The Laws of England (1769): unless he was psychic, he wasn’t writing about the Second Amendment. He is also commenting on English Common law, not US Constitutional law.
A correlary to (2) is that Blackstone died on 14 February 1780, which means he didn’t physcially take part in the debates regarding the US Constitution. So, while he is an example of an opinion on the state of the Common law in pre-Revolutionary times, he isn’t a US Constitutional authority.

The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self preservation,’” ante, at 20, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.

Justice Stevens’s dissent in Heller, p.30

Add in that self-defence as a topic is discussed in a different section: Blackstone’s Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

I get into this subject later in this post.

3) Article VI puts paid to any claim of Blackstone having any bearing upon the Second Amendment. For those not in the know. this is the text of Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

That means the British Bill of Rights, Declaration of Independence, Articles of Confederation, or a Philadelphia phone book from 1776 (if one existed) aren’t constitutional authorities and neither is Blackstone. Unless one is talking about a question of common law, which the Second Amendment ISN’T, Blackstone cannot be cited as an authority. Did Scalia have some third grader or his grandchild write DC v. Heller?.

Also, foreign law cannot be used as a holding, precedent, or to bind an outcome of a legal decision interpreting the Constitution. Strangely, the use of foreign law as being a no-no is something Scalia claims to believe, but not in this instance for some odd reason. Likewise, using a pre-revolutionary law textbook is a no-no as well: especially when trying to decipher the Constitution.

4) Most common law countries don’t even allow lesser self-defence items (e.g. pepper spray), let alone firearms. Britain has had laws regarding weaponry for some time. Examples of past regulation of Arms in England, The Assize of Arms from 1181, The Assize of Arms from 1252, The English Archery Law of 1363, The Border Reivers were forbidden to carry weapons by James I (England, VI of Scotland), James II “caused several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law” from BOR 1689, the Act of Proscription of 1746.

As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offence.

Even sillier is the belief that armed self-defence was acceptable at the time the Constitution was written. As anyone who knows the British law of self-defence knows, even the military can be called to account for excessive force. If there were a right to self-defence at that time, the soldiers in the Boston Massacre would not have been brought to trial for murder! I mean 9 soldiers surrounded by an ugly crowd–what other course of action did they have except shoot? Also, why didn’t the shipowners shoot the raiders during the Boston Tea Party?

Furthermore, The Bill of Rights of 1689 states that:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Got that as allowed by law?

So, again, don’t look to Common law for guidance on the Second Amendment. Especially since you are then stuck with how other common law countries, in particular England, have used and interpreted that source: e.g., Tony Martin.

Also, arms means weapons of all sorts, not just firearms. Hence “suitable to their conditions” which means a toff can have a sabre and a pistol and a peasant a pike. So, longbows, swords, etcetera have been regulated by English law since time immemorial: usually for ensuring the common defence.

St. George Tucker wrote this regarding the English Bill of Rights in his 1803 edition of Blackstone’s Commentaries:

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

It is pretty obvious that Blackstone would have been aware of the limitations to the “right to keep and bear arms” and know that it was not related to self-defence. The linking of self-defence to the Second Amendment is a very recent trend which comes from the “new scholarship”.

I know that I said something about taking DC v. Heller to the Privy Counsel in a previous post, but only a well educated US court is capable of rendering a judgement on the Second Amendment. I would imagine the Privy Counsel saying something such as that the Second Amendment is a US Constitutional question, which it is. Justice Stevens also correctly points out in his Heller dissent that any look at British law is totally different from US law (which doesn’t stop me from wanting to take DC v. Heller to the privy counsel). But I don’t really want to digress into that as I have more than enough posts about how the Second Amendment fits into the structure of the US Constitution.

Also, to say that arms are necessary for self defence neglects Blackstone’s writings concerning the law of self-defence which are:

THE defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blackstone’s Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

In short, as I have also said in previous posts, one can only use enough force to resist the attack and not become the aggressor. In fact, one should back down if possible rather than escalate to violence if one follows the common law of the time.

Statutes have recently changed the law of self-defence to allow for deadly force, but that is a statutory change and not a change in the common law. I have posted more than enough about the Common law doctrine of self-defence in other posts.

Going beyond self-defence, citing Blackstone as an authority would also require that you give deference to the proeme of the Second Amendment according to his rules of statutory interpretation.

If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.

The law which relates to the same point as the Second Amendment is the US Constitution itself and in particular Article I, Section 8: To provide for organizing, arming, and disciplining, the militia.

That would mean that you would have to go with it being a civic right (that is only for the militia) since deference must be given to the proeme (A well regulated militia, being necessary to the security of a free state). You would also have to look at other provisions in the Constitution that addressed the militia, which there are. Scalia decided to pick and choose his authority and sources ignoring this portion of the common law doctrine, misinterpreting the law of self-defence–which isn’t even mentioned in the Second Amendment, and ignoring the militia clauses in the main text of the Constitution.

In fact, Scalia violates another dictate found in Blackstone: stare decisis.

A judge is “bound by oath to decide according to the law of the land,” William Blackstone, Commentaries on the Laws of England. Blackstone notes that “it is an established rule to abide by former precedents,” that the scales of justice be kept steady and “not liable to waver with every new judge’s opinion.” It is a good thing, to achieve that end, the judge is “sworn to determine not according to his own private judgment, but according to the known laws and customs of the land.” (Blackstone at 117)

Stare Decisis is not absolute. Blackstone wrote, “[T]his rule admits of exception, where the former determination is most evidently contrary to reason” (Blackstone at 118). In such instances, it is incumbent on the inferior judge to decide pursuant to his Oath, and not to the faulty and irrational opinions of men. The DC. v. Heller chain of decisions is contrary to when an exception can be made to stare decisis as it was the opinion of the people and the faulty reliance upon Blackstone (and other irrelevant authorities).

In fact, the Heller decision is flawed from a stare decisis viewpoint in that there is no valid reason to overturn US v. Miller, 307 U.S. 174 (1939) other than public misinterpretation of the Second Amendment and a need to state the holding in idiot proofed modern English, which Justice Stevens did. The new scholarship is all over the place since it once talked about the militia, now we are seeing it being talked about in the context of self-defence for which there is no basis in the US Constitution.

I mean do a search for the term self-defense in one of the online versions of the constitution It ain’t there!. Common defense is and self incrimination is, but not self-defence.

There especially is not any authority to say the Second Amendment covers the right of self-defence using Blackstone.

The question asked by Patrick Henry was “When this power is given up to Congress without limitation or bounds, how will your militia be armed?” when the Second Amendment was being debated.

He wasn’t talking about self-defence! In fact, none of the quotes in the ratification debates deal with anything other than the question of Federal power under article I, Section 8:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For more quotes go here. The relationship between a Federal Army and state militias was what was being discussed at the time, not self-defence.

Which gets back to my point that The Book is called Blackstone’s Commentaries on the Laws of England and was published roughly 20 years before the Constution and before the war for American Independence. Blackstone was dead when the Constution was debated and had no idea of Article I, section whatever or the Second Amendment. That means you can’t place the Second Amendment in the context of his commentaries: it is a US Constitutional law issue.


Blackstone would have given deference to the prior court decisions under the doctrine of stare decisis and weight to the proeme (A well regulated militia, being necessary to the security of a free state).

Blackstone would be appalled to see his work trashed by Scalia in the DC v. Heller decision since this decision doesn’t follow Blackstone in any sense.

Ya can’t pick and choose what part is useful if you want to say he is an authority; well, with the exception where he is clearly irrelevant, which he is in regard to the Second Amendment jurisprudence.

I am not sure how Blackstone would have deferred to the legislature, which the Heller courts failed to do as well.

Justice Stevens’s opinion is a much better opinion from a legal standpoint: especially if one wished to use Blackstone as a source. Justice Stevens follows stare decisis, gives weight to the proeme, and did not give weight to “the faulty and irrational opinions of men”.

As Justice Stevens said.

The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.