Legal straw man

[Greg Jacobs]

Since Tom is a legal purchaser in his state, this is an example of a
perfectly legal straw man purchase. So there is anti-gun Big Lie
number #3, that all straw man purchases are illegal.

Methinks there is an opportunity here for an OAQ (occasionally asked
questions, or oak): anti-gun Big Lies and the truth.

The key to that is the definition of purchase versus taking delivery.  If 
you walk into a gun shop with your spouse, parent, sibling, friend, or child 
(of legal age, of course) and give the shop money for the purchase of a 
firearm but the other person with you takes delivery and fills out the Form 
4473, and is the subject of the NICS check, nothing illegal happened.  It's a 
straw purchase only with respect to the person who delivered the cash.  That's 
a far cry from you delivering the cash AND completing the forms (upon which you 
would have to lie in this instance), getting the NICS check, and then handing 
the weapon over to someone else in violation of the law and the Form 4473.  BIG 
difference.

***GRJ***
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Re: Legal straw man

[Olson, Joseph E.]

*What you describe is NOT a strawman purchase at all as top anyone.*

The strawman refers to using another person to *deceive* the dealer and THE
GOVERNMENT by making the fake appear as the transferee to the dealer and to
the government so that the NICS check is run on the fakeer and the
paperwork shows a transfer to the faker.

The government is concerned that the person who fills out the ATF Form 4473
and undergoes the NICS check is the actual buyer/transferee of the
firearm.  That is, the person takes and holds possession if the gun.  The
government is *not* concerned with the financing, absent fraud, of the
transaction.




On Wed, May 8, 2013 at 1:19 PM, Greg Jacobs grjtw...@earthlink.net wrote:


 Since Tom is a legal purchaser in his state, this is an example of a
 perfectly legal straw man purchase. So there is anti-gun Big Lie
 number #3, that all straw man purchases are illegal.
 
 Methinks there is an opportunity here for an OAQ (occasionally asked
 questions, or oak): anti-gun Big Lies and the truth.

 The key to that is the definition of purchase versus taking delivery.
  If you walk into a gun shop with your spouse, parent, sibling, friend, or
 child (of legal age, of course) and give the shop money for the purchase
 of a firearm but the other person with you takes delivery and fills out
 the Form 4473, and is the subject of the NICS check, nothing illegal
 happened.  It's a straw purchase only with respect to the person who
 delivered the cash.  That's a far cry from you delivering the cash AND
 completing the forms (upon which you would have to lie in this instance),
 getting the NICS check, and then handing the weapon over to someone else in
 violation of the law and the Form 4473.  BIG difference.

 ***GRJ***
 ___
 To post, send message to Firearmsregprof@lists.ucla.edu
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 http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof

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 wrongly) forward the messages to others.




-- 
**
Professor Joseph Olson, J.D.(*Hon*. Duke), LL.M.(*Tax*. Florida)
   o651-523-2142
Hamline University School of Law (MS-D2037)
f 651-523-2236
St. Paul, MN  55113-1235
 c612-865-7956
jol...@hamliine.edu
http://law.hamline.edu/constitutional_law/joseph_olson.html
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Re: Legal straw man

[Greg Jacobs]

Thanks, Professor. That was kind of what I meant. "Strawman" in the ATF context has taken on a different meaning than the one we read about in Contracts 101.***GRJ***-Original Message-
From: "Olson, Joseph E." 
Sent: May 8, 2013 2:14 PM
To: Greg Jacobs 
Cc: "Firearms Reg, List" 
Subject: Re: Legal straw man

*What you describe is NOT a "strawman" purchase at all as top anyone.*The strawman refers to using another person to *deceive* the dealer and THEGOVERNMENT by making the fake appear as the transferee to the dealer and tothe government so that the NICS check is run on the fakeer and thepaperwork shows a transfer to the faker.The government is concerned that the person who fills out the ATF Form 4473and undergoes the NICS check is the "actual buyer/transferee" of thefirearm.  That is, the person takes and holds possession if the gun.  Thegovernment is *not* concerned with the financing, absent fraud, of thetransaction.On Wed, May 8, 2013 at 1:19 PM, Greg Jacobs  wrote: Since Tom is a legal purchaser in his state, this is an example of a perfectly legal "straw man" purchase. So there is anti-gun Big Lie number #3, that all straw man purchases are illegal.  Methinks there is an opportunity here for an OAQ ("occasionally asked questions", or "oak"): anti-gun Big Lies and the truth. The key to that is the definition of "purchase" versus "taking delivery".  If you walk into a gun shop with your spouse, parent, sibling, friend, or child (of legal age, of course) and give the shop money for the "purchase" of a firearm but the other person with you "takes delivery" and fills out the Form 4473, and is the subject of the NICS check, nothing illegal happened.  It's a straw purchase only with respect to the person who delivered the cash.  That's a far cry from you delivering the cash AND completing the forms (upon which you would have to lie in this instance), getting the NICS check, and then handing the weapon over to someone else in violation of the law and the Form 4473.  BIG difference. ***GRJ*** ___ To post, send message to Firearmsregprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.-- **Professor Joseph Olson, J.D.(*Hon*. Duke), LL.M.(*Tax*. Florida)   o651-523-2142Hamline University School of Law (MS-D2037)f 651-523-2236St. Paul, MN  55113-1235 c612-865-7956jol...@hamliine.eduhttp://law.hamline.edu/constitutional_law/joseph_olson.html
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New approach

[Olson, Joseph E.]

The Value of Life: Constitutional Limits on Citizens’ Use of Deadly
Forcehttp://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2256035partid=47512did=171898eid=188278554
 [image: Free Download]
George Mason Law Review, Vol. 21,
2014http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=149110partid=47512did=171898eid=188278554

F. PATRICK 
HUBBARDhttp://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=624151partid=47512did=171898eid=188278554
, 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.

-- 
**
Professor Joseph Olson, J.D.(*Hon*. Duke), LL.M.(*Tax*. Florida)
   o651-523-2142
Hamline University School of Law (MS-D2037)
f 651-523-2236
St. Paul, MN  55113-1235
 c612-865-7956
jol...@hamliine.edu
http://law.hamline.edu/constitutional_law/joseph_olson.html
___
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Re: New approach

[Olson, Joseph E.]

The amazing thing is that the George Mason L. Rev. accepted it.

This is another of his recent papers:  Do Androids Dream?': Personhood and
Intelligent Artifacts http://ssrn.com/abstract=1725983


On Wed, May 8, 2013 at 7:58 PM, C D Tavares c...@libertyhaven.com wrote:

 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 
 Forcehttp://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2256035partid=47512did=171898eid=188278554
  [image: Free Download]
 George Mason Law Review, Vol. 21, 
 2014http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=149110partid=47512did=171898eid=188278554

 F. PATRICK 
 HUBBARDhttp://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=624151partid=47512did=171898eid=188278554
 , 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.



 ___
 To post, send message to Firearmsregprof@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 

RE: New approach

[Volokh, Eugene]

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, 

Re: New approach

[Olson, Joseph E.]

But, IIRC, in every state some act reasonably perceived as criminal
(usually assault) by the decedent is required before self-defense becomes
an option.  The initiating CHOICE is that of the decedent, not the
defending victim.  That choice is the equivalent of due process.  The
decedent is in total control of his acts.  He brings the consequences
upon himself.  Both the state and the defender are reacting to that free
choice.


On Wed, May 8, 2013 at 9:17 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

 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 

RE: New approach

[Volokh, Eugene]

I'm not sure what authority there is for the proposition that 
private choice is the equivalent of due process.  For instance, I don't think 
that a rule that says a person can kill anyone who he chooses to commit a 
particular crime can then be killed at will by anyone - i.e., the punishment 
of outlawry but without due process to determine that the person has indeed 
committed a crime - would satisfy due process on the theory that the outlawed 
person has chosen to commit the crime.  Choice can lead to punishment 
(including, historically, outlawry) through due process.  I don't think it's 
ever been seen as a substitute for due process.

But beyond this, we know that force, even lethal force, can be 
used in self-defense even against people who haven't chosen to commit a crime - 
people who, it turns out, did nothing wrong but were killed out of a reasonable 
mistake by the defender, or people who are so insane that they can't be seen as 
having made a choice at all (even under the narrowest historically accepted 
definitions of insanity).  So I don't think choice as such is doing the work 
here.

Eugene

From: Olson, Joseph E. [mailto:jol...@hamline.edu]
Sent: Wednesday, May 08, 2013 8:06 PM
To: Volokh, Eugene
Cc: C D Tavares; Firearms Reg, List
Subject: Re: New approach

But, IIRC, in every state some act reasonably perceived as criminal (usually 
assault) by the decedent is required before self-defense becomes an option.  
The initiating CHOICE is that of the decedent, not the defending victim.  That 
choice is the equivalent of due process.  The decedent is in total control of 
his acts.  He brings the consequences upon himself.  Both the state and the 
defender are reacting to that free choice.

On Wed, May 8, 2013 at 9:17 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
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
 

Re: New approach

[Phil Lee]

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, 

One more thought about positive and negative rights

[Volokh, Eugene]

Here's one more thought that might be helpful here:  The Bill 
of Rights, including the clause barring deprivation of life, liberty, or 
property without due process, wasn't enacted as some self-contained 
philosophical framework; it was enacted against a backdrop of English law and 
traditions, and while those traditions assumed a minimal role for the state, 
they did assume some role for the state - chiefly as protector of liberty and 
property.

Thus, for instance, say that a state statute is enacted that 
says, No homeless person is guilty of any crime or tort for sleeping on any 
privately owned unimproved area, notwithstanding any 'no trespassing' signs, 
fences, and the like, and police officers will not eject any such person.  I 
think there's a very good case to be made that this is a deprivation of the 
property owners' property rights without due process.  (It might also be a 
taking of private property for public use without compensation, see Kaiser 
Aetna and Loretto Teleprompter.)  But why?  The government is just withdrawing 
the positive protection offered by criminal and tort law.  (The statute doesn't 
deny the property owner the right to use force to eject the trespasser, so it 
isn't interfering with the owner's right to be free from punishment for such 
ejection.)  Yet this positive protection is part of the backdrop assumptions 
against which the Bill of Rights was written:  The legal system is available to 
protect the rights of property owners.  Likewise, the Contracts Clause 
presupposes positive protection for the rights of contracting parties.

I think something similar happens if the statute says, No 
homeless person is guilty of any crime or tort for killing someone who is 
nonlethally trying to eject him from any privately owned unimproved area, or 
no person is guilty of any crime or tort for killing someone who has been 
accused of a serious crime.   The government is withdrawing the positive 
protection offered to life by criminal and tort law.  But again this positive 
protection is part of the backdrop assumptions against which the Bill of Rights 
was written.

Again, this doesn't mean that even the broadest current rules 
related to defense of life or property are unconstitutional; such rules might 
themselves be part of the traditional backdrop (though I can't vouch for the 
most capacious such rules).  But it does suggest that we can't just dismiss 
this by saying that laws allowing killing raise no Due Process Clause problems.

Eugene
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Re: New approach

[Olson, Joseph E.]

The decedent can't be killed by anyone.  He can only be killed by the
person that the decedent's choice put in danger of (reasonably perceived or
actual) imminent danger of death or GBH.  The decedent made a bad choice
which caused the entire chain of events.  He had his due process when he
made that choice.  And, as a back up, if the defender doesn't act
reasonably, he's guilty of murder.  There is plenty of protection built
into the law of self-defense for the decedent.  This protection like due
process is no guarantee of perfection.


On Wed, May 8, 2013 at 11:48 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

 I’m not sure what authority there is for the proposition
 that private choice is the equivalent of due process.  For instance, I
 don’t think that a rule that says “a person can kill anyone who he chooses
 to commit a particular crime can then be killed at will by anyone” – i.e.,
 the punishment of outlawry but without due process to determine that the
 person has indeed committed a crime – would satisfy due process on the
 theory that the outlawed person has chosen to commit the crime.  Choice can
 lead to punishment (including, historically, outlawry) through due
 process.  I don’t think it’s ever been seen as a substitute for due process.
 

 ** **

 But beyond this, we know that force, even lethal force,
 can be used in self-defense even against people who *haven’t* chosen to
 commit a crime – people who, it turns out, did nothing wrong but were
 killed out of a reasonable mistake by the defender, or people who are so
 insane that they can’t be seen as having made a choice at all (even under
 the narrowest historically accepted definitions of insanity).  So I don’t
 think choice as such is doing the work here.

 ** **

 Eugene**

 ** **

 *From:* Olson, Joseph E. [mailto:jol...@hamline.edu]
 *Sent:* Wednesday, May 08, 2013 8:06 PM
 *To:* Volokh, Eugene
 *Cc:* C D Tavares; Firearms Reg, List
 *Subject:* Re: New approach

 ** **

 But, IIRC, in every state some act reasonably perceived as criminal
 (usually assault) by the decedent is required before self-defense becomes
 an option.  The initiating CHOICE is that of the decedent, not the
 defending victim.  That choice is the equivalent of due process.  The
 decedent is in total control of his acts.  He brings the consequences
 upon himself.  Both the state and the defender are reacting to that free
 choice.  

 ** **

 On Wed, May 8, 2013 at 9:17 PM, Volokh, Eugene vol...@law.ucla.edu
 wrote:

 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 

RE: New approach

[Volokh, Eugene]

But the hypothetical I gave is only an unconstitutional legal 
punishment for a crime if withdrawal of legal protection counts as punishment 
that requires due process.  And that's the article's claim:  That withdrawal of 
legal protection in certain cases requires due process.

This also responds, I think, to the point that the Constitution 
generally doesn't define crimes.  True enough.  But if state law makes murder a 
crime, then denying that protection to named people without a trial is 
unconstitutional (as a bill of attainder), precisely because denial of existing 
protections - including the protections offered by criminal law - constitutes 
punishment for which due process is required.  Likewise, if state law makes 
theft a crime, then saying anyone is free to take any diamond merchant's 
property, without risking criminal punishment for it would deny the merchants 
property without due process.

  Eugene


From: firearmsregprof-boun...@lists.ucla.edu 
[mailto:firearmsregprof-boun...@lists.ucla.edu] On Behalf Of Phil Lee
Sent: Wednesday, May 08, 2013 10:01 PM
To: firearmsregprof@lists.ucla.edu
Subject: Re: New approach

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.edumailto:vol...@law.ucla.edu
To: C D Tavares c...@libertyhaven.commailto:c...@libertyhaven.com; 
Firearms Reg, List 
firearmsregprof@lists.ucla.edumailto: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 

Re: New approach

[C D Tavares]

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.

--
   Escape the Rat Race for Peace, Quiet, and Miles of Desert Beauty
 Take a Sanity Break at The Bunkhouse at Liberty Haven Ranch
 http://libertyhaven.com



___
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Re: New approach

[Phil Lee]

Under our Constitution issuing a bill of attainder is a crime in the form of a 
legislative act.

Similarly, your hypotheticals are obvious illegal acts if offered by Congress, 
being denials of due process.

I suspect the real issue is our government's claim to lawfully kill people 
suspected of waging war against the US.  That, and my wanted dead or alive 
posters would lead to better hypotheticals, the justification being that war 
powers give the government the power in one case and in the other the 
apprehension is too dangerous.

Phil




 From: Volokh, Eugene vol...@law.ucla.edu
To: Phil Lee maryland_al...@yahoo.com; firearmsregprof@lists.ucla.edu 
firearmsregprof@lists.ucla.edu 
Sent: Thursday, May 9, 2013 1:32 AM
Subject: RE: New approach
 


    But what differentiates a “bill of attainder” from lots of 
other government actions targeting a particular person is precisely that “bills 
of attainders” are inflictions of punishment that should normally require due 
process.  By saying that legislatively-imposed outlawry of a particular person 
is a bill of attainder, you are saying that withdrawal of criminal protection 
is a punishment that requires due process.
 
    But let’s set aside the named person, and turn to any of my 
other hypotheticals.  “It shall not be a crime for squatters to kill anyone 
trying to nonlethally evict them.”  “It shall not be a crime for anyone to 
steal from diamond merchants.”  “It shall not be a crime for anyone to kill 
anyone who has been accused of rape.”  “It shall not be a crime for anyone to 
lock up indefinitely anyone who has been accused of rape but found not guilty 
as a result of a technicality.”  No deprivation of life, liberty, or property 
without due process?
 
    As to the shooting of fleeing felons, that of course involves 
positive government action, not just withdrawal of protection, so it’s not 
really on point.  And of course using deadly force to apprehend nonviolent 
criminals has been held to violate the Constitution, see Tennessee v. Garner.
 
    Eugene
 
From:Phil Lee [mailto:maryland_al...@yahoo.com] 
Sent: Wednesday, May 08, 2013 10:26 PM
To: Volokh, Eugene; firearmsregprof@lists.ucla.edu
Subject: Re: New approach
 
The example is only an illegal legal punishment for a crime being a power 
specifically denied to Congress and a crime that represents a conspiracy by 
selected federal employees.  

You may wrap your mind around this illegal-legal construction, but I'm not down 
the rabbit hole, yet.

And, protection has been withdrawn for murderers, example a criminal shoots a 
person killing that person, throws down his gun and runs, the USSC has held 
that police may use deadly force to apprehend the criminal even though no due 
process was given.
 
Phil



From:Volokh, Eugene vol...@law.ucla.edu
To: Phil Lee maryland_al...@yahoo.com; firearmsregprof@lists.ucla.edu 
firearmsregprof@lists.ucla.edu 
Sent: Thursday, May 9, 2013 1:09 AM
Subject: RE: New approach
 
    But the hypothetical I gave is only an unconstitutional “legal 
punishment for a crime” if withdrawal of legal protection counts as punishment 
that requires due process.  And that’s the article’s claim:  That withdrawal of 
legal protection in certain cases requires due process.
 
    This also responds, I think, to the point that the Constitution 
generally doesn’t define crimes.  True enough.  But if state law makes murder a 
crime, then denying that protection to named people without a trial is 
unconstitutional (as a bill of attainder), precisely because denial of existing 
protections – including the protections offered by criminal law – constitutes 
punishment for which due process is required.  Likewise, if state law makes 
theft a crime, then saying “anyone is free to take any diamond merchant’s 
property, without risking criminal punishment for it” would deny the merchants 
property without due process.
 
  Eugene___
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