(1) As I understand it, the claim is that the Fourteenth
Amendment, which provides that no state shall deny a person life or liberty
without due process, limits states' power to withdraw from people the
protections of the criminal law (e.g., the law against murdering those people,
kidnapping those people, stealing from those people, and so on). It's not that
the federal executive branch owes potential victims protection; it's that the
federal judiciary is available to suitably deal with state withdrawals of
protection.
(2) The Texas law I was referring to wasn't a law that allows
a presumption that a burglar is a threat; rather, it's Texas Penal Code sec.
9.42, which allows someone to use deadly force purely to protect property
against theft during nighttime, or to prevent someone who is fleeing with
property stolen during nighttime from escaping with the property.
Eugene
C.D. Tavares writes, responding to me:
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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