• Recent delusions of applicability

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Great post on CrimLaw

Over on CrimLaw Ken Lammers, a really smart (and often funny) blogger/prosecutor had some thoughts on the right to arm one’s self for the purpose of self-defense and the case-law in Virginia. He discusses a couple of jury instructions. One for cases where a person was knowingly armed, and another for when a person grabbed an available weapon.

Both instructions have a critical fault, though, one he doesn’t point out, but seem pretty obvious to me.

Both state that after a certain set of circumstances “then such person had a right to arm himself”. This is no longer true. McDonald has pretty much destroyed it, even if people haven’t caught on yet.

I hope it will not take long for a court to rule on it, as the plain language of the SCOTUS rulings is incompatible with the various jury instructions.

All persons have the right before any threat. In McDonald vs. Chicago the Supreme Court held: “that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

So, what right is recognized in Heller? Again from McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.

and from Heller itself: ” The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Most notablysuch asand. Those are not all-inclusive terms. In fact Heller expands it to a rather large area. Defending oneself has traditionally been lawful, so defending oneself with a firearm one can reasonable infer, would als be a protected right. And recall, Heller had heavy emphasis on the use of punctuation, I do not think the Court was blind to that fact when writing the opinion.

  • One has the right to possess firearms, and to use it, 


  • One has the right to possess firearms when used for

Heller did not protect one right, it protected a fully loaded magazine of rights.

However back to the jury instructions, all persons enjoy that right. Possession is independent of self-defense in the writing of the Court. Understanding the basis of Heller, and the writing of the court it cannot be reconciled that one has a right to be armed only if someone else acts causing one to need to act in self-defense. One has the right to be armed even absent any threat whatsoever. Individualized or not.

The instruction Ken preferred was:

When a person reasonably apprehends that another intends to attack him or a member of his family for the purpose of killing him or a member of his family or doing him or a member of his family serious bodily harm, then such person had a right to arm himself for his own necessary self-protection and the protection of his family, and in such case, no inference of malice can be drawn from the fact that he prepared for it.

“When… then” such person had a right. That is not compatible with McDonald or Heller which both recognize the right to be armed separate from the right to self-defense. The jury instruction seeks to override the right by saying “you only get it if” and that just ain’t so (in common vernacular).

As far as using the fact a person used a deadly weapon to prove malice. I don’t think that will survive either. As Ken pointed:

the Virginia Court of Appeals has stated the instruction is not appropriate when the defendant merely grabbed an available weapon to defend himself or his family.

All actions involving a person who has not forfeited their rights protected under the 2nd amendment will have to be interpreted as such until the prosecutor can prove the ONLY reason the person had a gun was to act with malice. An nigh-impossible burden except n the most blatant cases, or in cases where self-defense can’t be eliminated beyond a reasonable doubt.

At the onset though Ken stated this was about Bevley v.Commonwealth, which said (in part):

“when a jury is told that the law presumes that a person using a deadly weapon to kill another acts with malice”.

This is the key, can a law still state that use of a deadly weapon indicates malice when one has a fundamental right to posses, bear, and use such arms. I would submit it cannot. A jury would have to determine that a person who used such a weapon did not possess it pursuant to a protected right. The presumption, unmodified, cannot survive any level of scrutiny.

No, to survive a jury will have to find they possessed it only to kill, and not to use it for self-defense.


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