7/21/2009

Sotomayor's claim that there are no Supreme Court precedents on the right to self-defense

From Sotomayor's confirmation hearing:

Sotomayor: "I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one."


Well, it should have been pretty obvious that Sotomayor didn't know her constitutional law very well. First, there is the Heller case:

That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. . . .

It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. . . . . Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. . . . .


Some older cases:

Acers v. United States 1896 164 U.S. 388 238
Is fear of a deadly attack, without reasonable demonstrated grounds for the fear, sufficient to support a claim of self defense [NO]; Must the danger be immediate [YES]; Can any object be considered as a deadly weapon depending on how it was used [YES].

Alberty v. United States 1896 162 U.S. 499 231
If a husband sees another man trying to get into his wife’s room window at night is it natural for him to investigate further [YES]; Is the husband under a duty to retreat when attacked with a knife under such circumstances [NO]; May the husband use only as much force as is necessary to repel the assault [YES]; If in an ensuing confrontation the husband shoots and kills the other man, then flees, must his flight in and of itself be seen as evidence of his guilt [NO].

Allen v. United States 1896 164 U.S. 492 241
Are words alone sufficient provocation to justify an assault [NO]; Are words alone sufficient to reduce murder to manslaughter [NO]; Can premeditation and intent to kill be determined from your actions [YES]; Although flight after a possibly criminal event may suggest guilt, does it prove it conclusively [NO].

Allison v. United States 1895 160 U.S. 203 216
Is it reasonable to believe that you’re in immediate deadly danger if a person, known to be abusive, known to carry a pistol, and who has made public threats against your life, makes a motion as if to draw down on you, even if it turns out he wasn’t armed at the time [YES]; If there is no corroborating evidence besides your testimony, may the jury decide to take your word for it and acquit based on your credibility [YES]; If you have your deer rifle with you while visiting a friend’s house and your adversary shows up, and in an ensuing confrontation you shoot him, can the judge instruct the jury that you’re guilty of murder if you armed yourself to go hunt down your adversary, when there is no evidence to support this claim [NO].

Andersen v. United States 1898 170 U.S. 481 255
If an indictment is brought charging that a defendant shot and then threw a victim’s body into the sea, so the exact cause of death cannot be known, is the indictment flawed and invalid [NO]; Do the elements of self defense have to be present for an accused person to successfully claim self defense [YES].

Beard v. United States 1895 158 U.S. 550 208
Can you stand your ground with a shotgun against an unprovoked armed attack on your property near your home [YES]; Is there a greater duty to retreat on your own property than in your house [NO].

Brown v. United States 1921 256 U.S. 335 285
Is there a duty to retreat when attacked by a man with a knife [NO]; Believing you’re in a mortal conflict, if you fire a shot in the heat of combat, which in cool reflection later may be seen as unnecessary, may you still be acquitted on grounds of self defense [YES]; Is your right of self defense roughly similar in your home, on your land, and at your work [YES]; Can detached reflection be demanded in the presence of an uplifted knife [NO].

Gourko v. United States 1894 153 U.S. 183 189
If you shoot someone who has repeatedly threatened you, and the circumstances of the shooting are not found to be justifiable as self defense, does the fact that you armed yourself in response to the threat automatically make the shooting murder (as opposed to manslaughter) [NO].

Logan v. United States 1892 144 U.S. 263 180
Does the 2nd Amendment guarantee a preexisting right recognized by the Constitution, and not a right created by the Constitution [YES]; Is a prisoner in legal custody entitled to protection “while he is deprived of the ordinary means of defending and protecting himself” [YES].

Rowe v. United States 1896 164 U.S. 546 247
If a man is provoked into making a minor assault on someone, and then backs off in good faith, is his right to self defense restored if the person he assaulted attacks him with a deadly weapon? [YES]; Is he required to retreat under such circumstances [NO]; Is he under an obligation to try to only wound an attacker when fighting for his life [NO]; Can either party in a mutual combat claim self defense [NO].

Starr v. United States 1894 153 U.S. 614 196
If a law officer legally serving a warrant shoots at a suspect without identifying himself, is the suspect justified in shooting back and killing the officer in self defense [YES].

Tennessee v. Garner 1985 471 U.S. 1 428
Is the use of deadly force by police to prevent the escape of all felony suspects constitutionally unreasonable [YES]; Is the use of deadly force by a police officer permissible under the 4th Amendment, if necessary to prevent the escape of a felony suspect who threatens the officer with a weapon, or if there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, if, where feasible, some warning has been given [YES].

Thompson v. United States 1894 155 U.S. 271 203
Does arming yourself after being threatened, and then traveling the only road in the area where you know your adversary may be, turn a subsequent shooting of the adversary during a confrontation into murder? [NO]; Is arming yourself for legitimate self defense premeditation [NO].

Wallace v. United States 1896 162 U.S. 466 224
Is it up to the jury to decide whether a homicide is murder, manslaughter or justifiable [YES]; Does a perfect right of self defense require blamelessness in the confrontation and an act of necessity only [YES]; Can you claim self defense if you had intentionally brought about a lethal conflict [NO]; Is it up to the jury to decide whether you armed yourself defensively or otherwise [YES]; Is it murder if you enter a quarrel without felonious or malicious intent, and then, under reasonable belief of imminent mortal danger, you kill the assailant [NO]; Does the fact that you deliberately go and arm yourself, for self defense or other innocent purpose, turn a subsequent shooting necessarily from manslaughter to murder [NO].

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9 Comments:

Blogger The Right Guy said...

I ask then:
Why do some jurisdictions require even home owners to retreat in the face of a threat in their home?

7/21/2009 11:01 PM  
Blogger Matthew said...

What do you do when the police come to your door and break it down - do you have a right to shoot them? No. Self defense is clearly a conditional right like all others.

7/22/2009 1:35 AM  
Blogger The Right Guy said...

Matthew:
It depends. If you did not know they were police and they did not identify themselves as such, I think it is reasonable that you could use deadly physical force against them. May be John could chime in on this.

7/22/2009 8:04 AM  
Blogger Martin G. Schalz said...

The arrogance of ignorance rears it's head again I see. Sotomayor either hasn't a clue, or deliberately ignores case law.

Matthew; If someone breaks down your door, and does not identify themselves as law enforcement, you have the right to shoot them.

Law Enforcment does not have carte blanche to do whatever they want.

7/22/2009 11:45 AM  
Blogger Chas said...

For a self-styled "wise Latina", Stuttermayor is remarkably ignorant.
Why is there nothing like a civil service exam for the Supreme Court? One has to take such a test to become an assistant librarian, yet any ignorant, brain damaged, alcoholic dolt who is politically correct enough to be nominated for the Supreme Court can be confirmed.
In our society, there's a strict standard for the people on the bottom and no standard at all for those at the top. Our ruling class is far too "clubby".

7/22/2009 1:05 PM  
Blogger Conservatarian said...

John,
I have not read the cases you cited, but recognizing a common law or statutory right to self-defense in a particular case doe not make it a constitutional right. See my brief discussion at http://govtricks.blogspot.com/2009/07/new-constitutional-right.html and law professor Eugene Volokh's in depth discussion at http://www.volokh.com/posts/1248194157.shtml

7/22/2009 1:18 PM  
Blogger John Lott said...

Dear Conservatarian:

Sotomayor claimed that she didn't think that there were any Supreme Court cases that recognized a right to self-defense. I listed a lot of cases. I don't understand your point. Sure there is a common law tradition on the issue, but I was merely showing the obvious, that Sotomayor's claim was wrong.

7/22/2009 4:15 PM  
Blogger Justin said...

Is it self defense if the assailant doesn't intend to "kill" but merely beat you unconscious?

8/11/2009 7:50 PM  
Blogger The Right Guy said...

Intentions are difficult to ascertain. If you reasonably believe your life is in jeopardy or the life of someone else, you can use deadly physical force to terminate the action of the assailant. Where it can get dicey is whether or not the state has castle doctrine laws. In some states you can use deadly force to defend property, in other you practically have to have a gun to your head. All I can say is understand your state's laws, have a plan, and have a good lawyer.

8/11/2009 11:31 PM  

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