I think Tavares has it right about attainder since the Constitution forbids it,
it cannot be "a legal punishment for a crime." Moreover, he is wright about
trying to constrain actions of individuals with the Constitution. Except for
treason, no crime is defined for any individual and no penalty is set except
for removal from office for certain employees in government. Crimes are
defined and penalty set by Congress (at the federal level) and the only
Constitutional issue is the conduct of Congress, was the law constitutional,
not was the miscreant action Constitutional.
A better case about withdrawal of protection might be the old practice of
issuing "wanted dead or alive" posters. I wonder if that practice has ever
been legally tested?
Phil
________________________________
From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: C D Tavares <c...@libertyhaven.com>; "Firearms Reg, List"
<firearmsregprof@lists.ucla.edu>
Sent: Wednesday, May 8, 2013 10:17 PM
Subject: RE: New approach
Ah, but a bill of attainder is a legal punishment for a crime -- a denial
of life, liberty, or property without due process. If a statute that says
"It's OK to kill John Doe" is a bill of attainder, that's because the
withdrawal of protection against murder is a government action that must be
scrutinized under constitutional rules. If that's outside the police power,
and thus unconstitutional, it's because the Constitution does presuppose a
certain background level of entitlement to legal protection. (Incidentally,
the punishment I mention used to be called "outlawry," though it
was indeed seen as subject to the requirements of due process; outlawry was,
by the time the Constitution was framed, rare, but was understood as a judicial
punishment that could only be instituted after a normal trial. This reflected
the notion that stripping a person of his legal protection was a substantial
deprivation of liberty.)
And we can see the same, I think, if we remove the naming of an individual.
Say that a statute provides that anyone accused of rape loses his protection
against murder. Is that just a matter of the general police power, and not a
concern of the federal Constitution (or even a state Constitution, given that a
state constitutional right would trump state statutory or common-law rules,
including in theory criminal defenses)? Maybe, but it's not at all clear to
me. A provision that someone loses his protection against murder strikes me as
a denial of life or liberty, even
if it isn't the state that directly does the killing.
Eugene
> All of the below is true, of course. Yet the "legal protection against murder
> that all of us possess" is a matter for the general police power, which is not
> (or, in view of ever-creeping centralism, at least SHOULD not be) a concern of
> the federal constitution. So are the laws defining when a homicide is murder
> or valid self-defense, which seems to me to make all this mawkish reference
> to federal unconstitutionality ridiculous on its face.
>
> The laws do, indeed, differ between states, sometimes widely. For example,
> in Texas, it is legal for a bystander to employ deadly force against an
> arsonist.
> Most states consider this a property crime, but in Texas one is allowed to
> assume that the structure at risk is occupied. This is not "freeing people to
>
do as they please" -- the collective state, which gets to define the
> parameters of the police power, has simply defined them differently.
>
> The law you propose as an example sounds to me like a bill of attainder,
> which is specifically prohibited to the federal government by the
> constitution, so is probably not a good example. (Perhaps the difficulty of
> finding a good example that is constitutionally permissible is an indicator of
> how well this problem is already covered.) However, compare this "bill of
> attainder" in principle with the right of a private shopkeeper to post photos
> of deadbeats who have verifiably stiffed him on a "do not serve these
> people" poster, visible to the public, with no due process required
> whatsoever.
>
> On May 8, 2013, at 6:12 PM, "Volokh, Eugene" <vol...@law.ucla.edu>
> wrote:
>
> > (1) The fundamental constitutional right to life appears,
> >I think, in
> the Due Process Clauses. I agree, though, that it protects against
> governmental deprivations, not against private deprivations.
> >
> > (2) Also, while I agree (without having read the article,
> >though)
> that generally allowing the use of deadly force in response to various
> intrusions is constitutionally permissible, I think the reason is the
> traditional
> latitude offered for self-defense; I'm not sure that the argument that private
> self-defense is just "the conduct of private individuals" itself carries the
> day,
> when it is the government that is announcing an exception from the
general
> protection that it offers against killing.
> >
> > A hypothetical: Say that the legislature concludes, without a trial, that
> > John
> Doe is a bad person, and announces that he may be killed without legal
> consequence. Would we say that this is constitutionally permissible (even if
> otherwise improper), on the grounds that the legislature is simply freeing
> people to do what they please? Or would we say that stripping from this
> person the legal protection against murder that all of possess is
> unconstitutional? I could be persuaded otherwise, but I'm inclined to say the
> latter. If I'm right, this of course doesn't mean that allowing deadly force
> in
> defense of person or even property is unconstitutional; but it does suggest
> that the constitutionality stems from the tradition of such allowance (and
> might be in some
measure limited by this tradition), and not by a positive
> rights vs. negative rights distinction.
> >
> > Eugene
> >
> > From: firearmsregprof-boun...@lists.ucla.edu
> > [mailto:firearmsregprof-boun...@lists.ucla.edu] On Behalf Of C D
> > Tavares
> > Sent: Wednesday, May 08, 2013 5:59 PM
> > To: Firearms Reg, List
> > Subject: Re: New approach
> >
> > The entire paper seems to hinge on a massave fallacy:
> >
> > Today, when a concerted effort is made to obliterate this point, it cannot
> be repeated too often that the Constitution is a limitation on the
> government, not on private
individuals -- that it does not prescribe the
> conduct of private individuals, only the conduct of the government -- that it
> is
> not a charter for government power, but a charter of the citizens' protection
> against the government.
> > --AYN RAND
> >
> > It is ridiculous a priori to propose that a private citizen cannot perform
> actions that would be unconstitutional for a government to perform. A
> private school may choose to accept only Catholics or blacks; a public school
> may not. A private business owner may give hiring preference to his
> brother-in-law; a government bureau may not. A fraternal organization or
> club may close its business and social functions to non-members; a
> government may not. A private editor-in-chief or TV producer may refuse all
> content and commentary favorable to one side of a political issue; a
>
government media outlet may not. A private welfare organization can take a
> recipient's "attitude" into account; a government welfare organization
> cannot.
> >
> > Another basic error in this piece is that the state has a "monopoly of
> > deadly
> force." The state has a monopoly on INITIATING deadly force. Any citizen
> has a right to RESPOND to deadly force with deadly force in defense.
> >
> > I'd also ask this fellow to point out specifically where in the text I may
> > find a
> "fundamental constitutional right to life."
> >
> > Is this what they're teaching in law school these days? I don't know
> anything about USC, but I'm surprised to see sophistry of this caliber being
> published by George Mason.
> >
> > On May 8, 2013, at 1:42 PM, "Olson, Joseph E." <jol...@hamline.edu>
> wrote:
> >
> >
> >
> > "The Value of Life: Constitutional Limits on Citizens' Use of Deadly Force"
> > George Mason Law Review, Vol. 21, 2014
> >
> > F. PATRICK HUBBARD, University of South Carolina - School of Law
> > Email: hubb...@law.sc.edu
> >
> > This Article argues that most states have unconstitutionally overbroad
> authorizations for citizens to use deadly force in the context of crime
> prevention, citizen's arrest, and defense of one's "castle." Similarly, some
> authorizations of deadly force for self-defense in public areas may be
> unconstitutional. The starting points of this argument are the fundamental
> value of life, the state's monopoly of deadly force, and the
fundamental
> constitutional right to life. Because of the state's monopoly of deadly force,
> any use of such force is either legitimate or proscribed. The lack of a third
> category of "private" use of deadly force affects constitutional review of
> authorizations of the use of deadly force in two ways.
> >
> > First, a citizen's use of authorized deadly force is subject to the same
> constitutional limitations that apply to a governmental official's use of such
> force. Consequently, because some authorizations permit citizens to use
> deadly force in a way that would be unconstitutional if a government official
> had used the same force, these citizen authorizations are also
> unconstitutional.
> >
> > Second, equal protection and substantive due process review of an
> authorization require a stringent standard of review in terms of the rights of
>
citizens killed as a result of the authorization of deadly force. More
> specifically, because of the fundamental constitutional right to life, the
> authorization must be narrowly tailored to address a compelling state
> interest. Many authorizations of deadly force do not satisfy this standard
> because they are so overbroad that they include authorizations of deadly
> force in situations where the state interest involved is not sufficiently
> compelling to justify a denial of the fundamental right to life.
> >
> > Because of the unfairness of applying a constitutional limit in the context
> where a citizen has acted in accordance with an overbroad authorization of
> deadly force, a prospective declaration of unconstitutionality may be
> appropriate.
> >
> >
> > _______________________________________________
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> >
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> _______________________________________________
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