(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: [email protected]
[mailto:[email protected]] 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."
<[email protected]<mailto:[email protected]>> wrote:
"The Value of Life: Constitutional Limits on Citizens' Use of Deadly
Force"<http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2256035&partid=47512&did=171898&eid=188278554>
George Mason Law Review, Vol. 21,
2014<http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=149110&partid=47512&did=171898&eid=188278554>
F. PATRICK
HUBBARD<http://hq.ssrn.com/Journals/RedirectClick.cfm?url=http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=624151&partid=47512&did=171898&eid=188278554>,
University of South Carolina - School of Law
Email: [email protected]<mailto:[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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