In discussing my increasingly controversial theory that the Second Amendment, in announcing a "right of the people to keep and bear arms" ("RKBA," apparently, for short), announces that individual citizens' property rights in guns "shall not be infringed," I've gotten some really interesting ideas from a smart and thoughtful gun enthusiast who, like many others, objects to this theory. One was the idea that RKBA refers not to property rights in chattels, but a "right to exist in a particular state of being," viz., the "state of being" armed. This is a fascinating concept that I addressed in my last diary.
Today I want to address another one, in a different way. In a couple of recent diaries I've attempted to examine and understand the objection that some gun enthusiasts (a term, by the way, that I got from George Carlin) have to this idea that the Second Amendment announces non-infringeable property rights in guns, but doesn't announce anything else. (I still haven't gotten a clear answer as to what other specific things it announces, although I've come up with a few possibilities on my own, but that's not the topic for today.) My friend summed it up, from his perspective, referring to me in response to someone else, thusly:
The "property rights" argument is somewhat offensive based on the source it's coming from. As a legal thought exercise you can make his argument. It does have some degree of logic to it (though it also has fatal flaws). The issue is we recognize WHY he is making it. It's to create a crack, a sliver of light, that can have a crowbar wedged in it to rip the door right on open.(emphasis added).
Let's stipulate that he's entirely right.
The question for today is, what does that "crack" look like? When that "sliver of light" emerges, what do we see? What is that "door," and what's on the other side of it?
What is the absolute worst thing that could possibly happen to gun owners, gun enthusiasts, and gun rights if the courts and legislatures ever came around to the idea that the RKBA is a set of non-infringeable property rights in a special category of goods, but nothing more? What, specifically, is a freedom-hating authoritarian gun-grabber like me actually trying and hoping to accomplish by postulating and disseminating this ridiculous, dangerous and offensive idea?
Let's set up a hypothetical to explore this issue, and then let's take a journey through the looking glass, peer into that "sliver of light" and walk through that "wide open" door to see what's on the other side.
[Attention law professors and Bar examiners: Please feel free to use this hypothetical in future exams, moot court problems, and other assignments. -LZ127]
Let's say a criminal defendant in State X, which does not have a "stand your ground" law, is convicted of second-degree murder. The defendant had argued self-defense at trial, but the judge instructed the jury that under State X's penal code, the defendant has a duty to retreat (see Model Penal Code § 3.04 (2)(b)(ii)). The jury found that the defendant could have easily run away from the encounter, and that the defendant's use of deadly force in self-defense was not justified.
The defendant appeals his conviction to the State X Court of Appeals. Joined by the NRA as amicus curiae, the defendant argues that the "right to self-defense" under the Second Amendment, specifically the right to use firearms in self-defense, is absolute; that the Second Amendment bars any requirement that the use of firearms in self-defense be "justified." Therefore the "duty to retreat" in the State X penal code infringes that right, and is thus unconstitutional. The brief is based in part on the Supreme Court's decision in D.C. v. Heller, which held that the Second Amendment provides an individual "right to keep and bear arms" for "traditional lawful purposes, such as self-defense."
The State X Court of Appeals upholds the conviction, finding that the "duty to retreat" is not inconsistent with the "right to self-defense," nor with the "right to bear arms for lawful purposes." Although the court need not and does not rule on whether the "right to keep and bear arms for traditional lawful purposes, such as self-defense" means, includes or translates to a discrete "right to self-defense," the court expresses doubt that it does, writing in dicta:
The text of the Second Amendment does not include the words "self-defense" or any other words that explicitly denote same. A person can, of course, defend himself without owning, possessing, carrying or using firearms, including inter alia by retreating from a dangerous encounter. We do not doubt that a "right to self-defense" exists -- it almost certainly does -- we merely doubt that it is announced by, or contained in, the Second Amendment itself. It may be found in one or more other Amendments, but it exists separately and independently of the right to keep and bear arms.The Supreme Court grants certiorari, certifying the question of whether the Second Amendment announces a discrete "right to self-defense" independent of any relationship to firearms. The defendant and amici argue that it does, and that it announces other "liberty" interests as well, including inter alia the right to hunt, to target-shoot, to guard one's home and other real property, and to overthrow a tyrannical government. State X and its amici argue in opposition that RKBA announces only property rights in firearms; that the "liberty" interests cited by the defendant may well exist, but not in the Second Amendment.
In a 5-4 decision, the Court holds that (1) there is a Constitutional right to self-defense, of both person and property, but (2) that right is not found in the Second Amendment, which announces only non-infringeable property rights in firearms. The majority opinion states:
Considering the text of the Second Amendment and nothing else, it is clear that the phrase "keep and bear" refers exclusively to property interests, such as ownership, possession, transportation and alienation, of chattels, viz., "arms." One cannot dispute that "arms" are themselves property. The Second Amendment is the only provision of our Constitution that enumerates a specific type or category of property, and singles that property out for special protection; for rights therein that "shall not be infringed." Still, "arms" are property, and the right expressly announced is a right to "keep" that property, and to "bear" that property.OK. So, what happens next?
It is equally clear that the American people have other rights under the Constitution and its Amendments that may incidentally involve or require the use of firearms. These include, but are not limited to, the right to self-defense of person and property, the right to hunt game for food and/or sport, the right to engage in recreational activities such as target- and skeet-shooting, the right to forcibly overthrow their lawfully-elected government if they are dissatisfied with the results of recent elections, and the right to threaten or kill elected officials and other government agents if their actions warrant it. These rights and others are discrete liberty interests that may be found in the Constitution, but do not arise out of the Second Amendment itself. The Second Amendment provides that the right to acquire, own, possess, hold, carry, transport, store, display, manufacture, maintain, alter, transfer and alienate firearms of any and all kinds, shall not be infringed. But that is all it provides.
Let's say that freedom-hating authoritarian gun-grabbers like me, in Congress and in state legislatures all across the country, have got hold of this decision, read it, taken a night to sleep on it, then gotten up the next morning and gone to work champing at the bit to get started on .... what, exactly? What are the freedom-hating authoritarian gun grabbers going to do with this decision, now that it's been handed down? What are they going to do now that they couldn't do before?
Let's say also that the NRA is furiously searching for another case to bring to the Supreme Court that might overturn this horrible and dangerous decision. But as everyone knows -- and as the defendant and the NRA found out in the hypothetical case above -- bringing a case to the Supreme Court doesn't always get you the result you want. What might the Wizards in Black Robes deign to do next, if and when they're called upon to reexamine this decision?
It's to create a crack, a sliver of light, that can have a crowbar wedged in it to rip the door right on open.What does that "crack" look like?
What does that "sliver of light" reveal?
What is on the other side of that door?
Let's explore that, shall we?