On May 8, 2013, at 10:22 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
> Rather, the difference is captured in the second paragraph
> below, and it has come into American law as a matter of long-standing
> tradition, a backdrop against which the Constitution was enacted and should
> be understood. So what makes various forms of self-defense defenses
> permissible isn’t just that they are exercises of “police power,” or
> withdrawals of positive protection, or triggered by individual choice. It is
> that the provision that the government may not deny people “life” without
> “due process of law” implicitly embeds the understanding that allowing
> certain kinds of killings (but not necessarily all killings) is consistent
> with that provision.
WIth respect to the paper under discussion, I'm not ready to swallow the
argument that the FEDERAL government owes potential victims protection against
their lives being taken by third parties "through the membrane of federalism,"
due to some prohibition in the federal constitution against "denying people
life without due process of law." That would in practice put almost all police
power in the hands of the federal government.
If the federal government posts a shoreline as "do not swim" or "do not fish"
because of some toxic event, and a citizen chooses to ignore that sign and ends
up dead, is the government responsible for denying someone life without due
process of law? The element of choice cannot be disposed of.
> Finally, note that some forms of lethal self-defense, such
> as Texas’ allowance of certain kinds of killings to recapture property, do
> not “prevent equivalent harm to an innocent victim”; I take it that this is
> part of what the article that triggered this exchange is speaking against
> (though it doesn’t necessarily follow that the article is correct on this
> score).
Texas law simply allows the responder to assume that there ARE innocent victims
inside the structure. I see no difference between that assumption, and
allowable assumptions in federal law that a hunter hunting over a baited field
must be the one who baited it, or at least knew it was baited; or that a gun
dealer "should have known" that a prohibited possessor (or more likely, an
agent pretending to be a prohibited possessor) lied on a form.
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