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