suboptimal information

DC v. Heller

July 5, 2008 on 11:42 pm | In Headlines, Needs more info | No Comments

While I’m glad that SCOTUS ruled that the second amendment protects an individual right, as do most of the other amendments in the Bill of Rights, I feel the need to contribute to the ‘nets comments en masse.

First, it was a pleasure to read in the majority opinion the comparison of the occurance of “the People” with other instances of individual rights clauses elsewhere in the Constitution.   It was also nice to see the court make a distinction between regulation and prohibition – that effective prohibition under the guise of regulation that rejects all applications is also contrary to the constitution.

Now the aftermath

Some gun control advocates continue to try to spin the Second Amendment as a law establishing a state priviledge rather than, as the framers and most of the state constitution conventions wanted, an enjoinment of the government protecting existing laws granting private weapon ownership.  Their argument alone gave me the drive to research further and I found the citations of the wikipedia article about the Second Amendment very telling. State ratification conventions in particular – several states included proposed drafts of a right to bear arms amendment in their ratifications and some refused to ratify the Constitution until that right was protected.

I think we need further case law.   Perhaps we need someone to test a ludicrous defense argument to reinforce self defense laws.   In most states lethal force is prohibited unless in the defense of imminent specific deadly threat to the defender’s person or other individuals.   An immediate specific painful but not lethal threat or a vague future threat doesn’t justify lethal force – if a prosecutor can argue that a reasonable person would have had a recourse other than violence, the victim can be prosecuted for unnecessary force.   Perhaps we need some assailant, charged and convicted of a greater crime over a victim who resisted, to argue for a mitigating factor in their sentence on the basis that their victim resisted:  if the victim hadn’t had armed resistance, the assailant might not have had to escalate their crime and would only have been guilty of a lesser crime in the face of a compliant victim.

The US also needs a strengthened restraining order law.   Presently a victim with a premeditated attacker that is enjoined by a restraining order gains no further benefit from that restraining order in the absence of law enforcement.   The only gain from a restraining order is a lowered cause for arrest by law enforcement – the civilian has no additional benefit unless law enforcement is present.  Violation of a restraining order should provide the victim (under the requirement of proof of violation of the restraining order) a lower barrier to lethal force.