If my hypotheticals are obvious illegal acts if offered by Congress, being denials of due process, that must be because stripping someone of positive protection – the protection given by the criminalization of attacks on or thefts from that person – is indeed a denial of due process. And that suggests that allowing people to kill those who are stealing from them, or burglarizing their homes, or some such might be a denial of due process, too.
That it isn’t a denial of due process stems from various factors, including the historical recognition of self-defense principles. (Similar historical exceptions may justify situations where the government is affirmatively killing people, such as in the war example.) My point has simply been that you can’t say “no problem with allowing killing in self-defense or defense of property, because that’s just the government not acting, and the government has no duty to act.” Eugene From: Phil Lee [mailto:[email protected]] Sent: Wednesday, May 08, 2013 10:49 PM To: Volokh, Eugene; [email protected] Subject: Re: New approach 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" <[email protected]<mailto:[email protected]>> To: Phil Lee <[email protected]<mailto:[email protected]>>; "[email protected]<mailto:[email protected]>" <[email protected]<mailto:[email protected]>> 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:[email protected]] Sent: Wednesday, May 08, 2013 10:26 PM To: Volokh, Eugene; [email protected]<mailto:[email protected]> 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" <[email protected]<mailto:[email protected]>> To: Phil Lee <[email protected]<mailto:[email protected]>>; "[email protected]<mailto:[email protected]>" <[email protected]<mailto:[email protected]>> 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
_______________________________________________ To post, send message to [email protected] 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.
