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." <[email protected]> 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: [email protected] > > 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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