In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: self-defense and the Constitution.
"The stand-your-ground law is one portion of justifiable use of deadly force. And what that means is that the state must go forward and be able to prove its case beyond a reasonable doubt... It makes the case in general more difficult than a normal criminal case."
-Angela Corey, State Attorney in Jacksonville, Fla., who has been appointed to lead the investigation into the February 26 shooting death of 17-year-old Trayvon Martin in Sanford, Fla. Corey commented to ABC News on March 26 about the possible prosecution of the individual who has said he shot the youth in self-defense.
"Justifiable use of deadly force" is another way of talking about a right of self-defense. That right is a very curious thing in the law: it is nowhere mentioned in the Constitution, yet it has ancient roots in legal theory and history, everyone probably assumes they have such a right, and perhaps half the states make it a specific right under their own constitutions.
And all of that is why State Attorney Corey may have a tough time getting a guilty verdict if she were to file criminal charges against George Zimmerman, the "neighborhood watch" volunteer at the Retreat at Twin Lakes subdivision in Sanford, Fla., for allegedly killing Trayvon Martin.
At this point, if he is charged, his defense very likely will be based in part on a Florida statute now widely known as the "Stand Your Ground" law. But behind that law, initiated by the National Rifle Association and now imitated in more than 20 other states, is an argument that such a right to defend one's self in the face of imminent danger ought to be treated as constitutional in nature.
That is based on a theory that has been talked about for years in academic circles and among gun-rights advocates, and, if one could discuss it without the emotion of the kind stirred up by Trayvon Martin's tragic death, the theory is not entirely frivolous.
The Supreme Court has spoken of a right of self-defense within one's home as if it were a clearly established right. Its decision in 2008 in District of Columbia v. Heller, recognizing a personal right to have a gun under the Second Amendment, said that such a weapon could be used "for traditionally lawful purposes, such as self-defense within the home."
And, in what is widely regarded as a compelling scholarly argument for self-defense as a constitutional right, Fordham law professor Nicholas J. Johnson declared confidently in a 2009 law review article: "While the stickler might quibble about the fashion in which it has been recognized, the ancient right of self-defense is in the first echelon of fundamental constitutional rights essential to 'liberty,' first among the [unenumerated] rights protected by the Ninth Amendment, and at the core of a proper understanding of the Second Amendment."
The NRA's promotion of "stand your ground" laws has proceeded from the Second Amendment aspect of that very theory. (Professor Johnson wrote that the evidence that the Second Amendment contains a right of self-device "seems quite overwhelming.")
What a stand your ground law does, as Florida's statute shows, is to do away in some situations with a long-standing limitation on the right to defend one's self: that is, it provides a way to overcome the so-called duty to retreat in the face of danger rather than engage in a violent response.
Florida's law says that "a person who is not engaged in an unlawful activity and who is attacked in any other place he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or to another or to prevent the commission of a forcible felony."
It is not an authorization to use deadly force first, or always, because it depends upon (a) the shooter having a right to be where the incident occurred, (b) the shooter must have been acting lawfully at the time, (c) must have been attacked, and (c) must have had a "reasonable" belief that deadly force was necessary. It is a defense to a charge of criminal use of deadly force, and it is up to a jury to decide if the conditions in the law have been met. (If George Zimmerman were charged, it probably would be under a Florida law making it a crime to engage in "unnecessary killing to prevent an unlawful act." That is the law cited by local police when they typed up their report on the incident.)
As of now, "stand your ground" laws are a matter of state law only, but could in time provide the means to implement a right nationwide if self-defense were ultimately to emerge as a guaranteed right under the Constitution.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
I am grateful for the state that I live in [Arizona] and it's current laws regarding 2nd Amendment and self-defense. Arizona is about as "pure" as it comes to non-deviation/non-infringement on 2nd Amendment rights. All other states basically infringe on your right to carry a firearm in one way or another. It can be argued that every deviation from the constitution would be an infringement. e.g. Magazine capacity restrictions, carry restrictions, mode of carry restrictions, permits, fees etc....
Don't get me wrong I am for education of firearms and firearms training.
Think of it this way, would we allow slow but steady infringements on the 1st Amendment? Would we allow there to be restrictions about opposing the gov't verbally, activism etc....
If not then why do we allow it for 2nd Amendment?
I am eager for responses and a productive discussion!
I should not be obligated to go another direction just because somebody wishes to do me harm.
Zimmerman then claims, Trayvon attacked him beating him to a pulp.. for several minutes while he cried out for help. He somehow climbs on top -pulls out his 9mm, which he claims to be legally ok. He shoots Trayvon point blank in his chest. After, Trayvon is found face down arms under his dead body---- Zimmerman is released from custody, due to SYG law. Trayvon is declared dead at the scene! I would have to believe as a normal person there is something extremely wrong with this law. It appears in a logical duel instance, both were standing their ground, exception is... Zimmerman left his ground- his car and went to the ground where Trayvon was standing ..asking what are you doing here? Therefore, Zimmerman was no longer protected under the law- He Left His Ground!!!
No evidence that Zimmerman climbed on top of Martin.
"After, Trayvon is found face down arms under his dead body---- Zimmerman is released from custody, due to SYG law."
A justifiable homicide is not a crime. In order to arrest Zimmerman, police required probable cause that a crime had been committed, i.e. to refute the self-defense claim. There was no such evidence, and none exists to date.
"It appears in a logical duel instance, both were standing their ground, exception is... Zimmerman left his ground- his car and went to the ground where Trayvon was standing ..asking what are you doing here? Therefore, Zimmerman was no longer protected under the law- He Left His Ground!!!"
Incorrect. Once Martin physically attacked Zimmerman, he had the legal right to defend himself. Your post is rife with conjecture and factual error, therefore your conclusion is incorrect.
Regardless of what you or anyone takes away from this horrific incident... there will be hearings, there will be marches, there will be interviews, there will be an ongoing investigations, there will be people who will be tested in the court system when they are called to provide their account as to what they know, there will be threads that favor one or more opinions in this serious and unprescedented case.
The fact is...neither you or I were there... we can only go by what is reported. If you are one of the eye witnesses (which is what you sound like) then you need to go to the proper authorities and present to them your testimony. I understand what the debate is about. The law! The law, SYG ... as a constitiutional check to revisit and the proper officials who are hired or voted in to protect the people of the USA regardless of color, age or origin.... will determine the facts.. Until then millions like myself openly express or offer an opinion.. without being tested or otherwise... no reply on your link...I am responding on mine... standing my ground so to speak!!
When it comes to the use of lethal force, either the conditions above must be met OR the person must have the reasonable belief (IOW the average "reasonable" person would concur) that the other person is going to either A) kill the defender or a third party, B) cause great bodily harm to the defender or third party, or C) commit a violent felony. In order to be considered "reasonable" to belief one of these things is about to happen, the general standard used is the ability to show that they believed the attacker had (I) the intent, (II) the ability, and (III) the opportunity to do one of these things. Example: A man saying he is going to kill you, holding a knife, and standing right in front of you satisfies all three criteria and the use of lethal force is justified. Put a chain link fence between the two of you and the opportunity goes away and lethal force would not be justified.
And quite frankly, this is the general standard used in all 50 states regardless of an SYG law.
This is a pretty good summation, but I would like to expound a bit. There are two issues in the section of law you are referring to. The first is the overall use of force and the second is specifically the use of lethal force.
In order to use force or "meet force with force", which we can treat as non-lethal force, the criteria are that the defender 1) must not be doing anything unlawful, 2) must have a right to be where they are, and 3) must be attacked.
...cont
"secure the Blessings of Liberty to ourselves and our Posterity" - Constitution
"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property" - Amendment V
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - Amendment IX
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." - Amendment X
Self-defense has been a matter of criminal law, which is almost entirely state law.
http://hammerheadcombatsystems.org/2012/03/24/the-discretionary-mindset/
Sounds to me that Trayvon was "standing his ground" against Zimmerman WHO WAS PURSUING HIM AND WAS TOLD BY AUTHORITIES TO STOP PURSUING TRAYVON, but I think a jury needs to decide this.
Really? I looked in my copy and found this: "Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Right there is that "right to privacy" that Scalia said he couldn't find and my right to stand my ground that YOU can't find.
Back to school, boys and girls, for a little remedial "Reading For Comprehension".
Zimmerman was infringing on Martin's rights by stalking him with the intent to do harm.
The SYG laws allow you to go from a heated disagreement to shooting someone in moments if that person even flinches in your direction since all you need to be is in fear of your life and each persons relative fear levels are different and it's impossible to prove they are lying about how they felt.
To me everyone including our violence loving LEO's should always have to make every attempt to prevent violence from happening before you can claim a justified shooting.
It's always been that way.
Fear is not enough for justification.
However, the Government does not have "rights"
They only have "Power... "or authority."