LotsRegret
4d ago
That is fair, "time, place, manner" is more interest balancing that I wasn't thinking about - but the scales are much more defined on the first than the second.
You've got three levels with the first amendment: strict scrutiny, intermediate scrutiny, and rational basis. The problem was a lot of courts were treating the 2A with "rational basis" level analysis far too often when they should be treating most with strict scrutiny most commonly which is what I think SCOTUS is slowly building towards if they keep taking on a couple 2A cases per session.
LotsRegret
4d ago
Unfortunately that is primarily because the 2A has been a red headed stepchild in SCOTUS forever - with SCOTUS not taking almost any 2A cases - so they haven't built up much precedent. Going back in history to see what laws were around is how SCOTUS does all the constitutional interpretation, but because they have a ton of built up caselaw they point to those cases (which should eventually point back to founding era stuff) it just seems less like that is what its doing on its face. If SCOTUS were to take up a couple 2A cases each term, like they do for the 1A, we'd have a similarly built up rulings to make things seem more obvious based on previous rulings.
Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment. Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?
As far as laws being racist or not, once a law has been ruled unconstitutional it is considered as though it was always unconstitutional - so citing an unconstitutional law for evidence is a really bad argument. Hence why using the Black Codes for evidence was a nonstarter.
LotsRegret
19d ago
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” -- CS Lewis
LotsRegret
23d ago
How much of this is a redefinition and how much of it is a more correct clarification on what that thing is.
Even before COVID I was aware vaccines don't prevent an ailment with 100% effectiveness. I get the flu vaccine every year, and maybe 20% of the time I'll still get the flu - I figured most people have had similar experiences.
Did a large swath of people actually believe a vaccine had 100% effectiveness before COVID?
LotsRegret
4mo ago
We don't arrest people for being 'likely' to commit a crime.
It isn't required to arrest someone, you can detain them pending investigation as long as you have reasonable articulatable suspicion, then you can arrest them with probable cause.
LotsRegret
5mo ago
For most government benefits, you have long, messy, expensive processes to prove that you are actually eligible. UBI would thus cut down on a lot of caseworker load for social security for able-bodied persons.
I'm not sure I believe this. I am skeptical that you can replace the vast majority of the current welfare system with UBI if people find ways to burn through their UBI and have starving kids, etc. If anything has been learned in the past decade or so it is that crying children and women (especially the non-white variety) lead to infinite think pieces and action by NGOs, media apparatuses, etc. to ensure they can receive as much as possible from the government coffers or legal changes.
LotsRegret
6mo ago
If I remember right, the only images those officers had seen were (1) where he was wearing a mask and (2) poor quality / unusual angle - so a confident positive ID is unlikely. Now, Mangione did fuck up by presenting the police a fake ID, the same one he used for the hostel he stayed at in NY which gives them cause for arrest, but the police didn't get a search warrant before searching his backpack which is a big screw up.
LotsRegret
7mo ago
This is just part and parcel of the swap that goes on whenever one side gains control of the white house. The "right" now believes the government story and the "left" doesn't - essentially the polar opposite of two years ago - and it'll swap again once the democrats win the presidency again.
LotsRegret
8mo ago
One, is that actually a fair characterization of all SYG laws, that they only narrowly remove avoidance
I try to avoid absolutes, but I haven't seen any SYG law that did anything except remove avoidance - which isn't to say a judge or jury somewhere misunderstood it in a case - so if I could be pointed to a bad SYG law that removes more than avoidance, I'd love to see it.
I realize sympathy for assailants is low around here, but common law does usually support the idea that e.g. a fistfight or an unarmed mugging is usually not a fight to the death (of course intentionality matters). The presence of a gun obviously changes the calculus. But who assumes this extra risk, is the operative question?
In this case, the defender with the gun isn't legally allowed to use it in a non-lethal confrontation - it would break the proportion pillar, just having the gun doesn't permit one to use it. SYG also doesn't do anything here as if the "defender" goes for the gun, they are not acting in legal self defense with or without SYG.
As an example, should a conscious decision to bring a gun to an otherwise nonlethal dispute have any bearing on the legal responsibility, and do SYG laws impact that kind of finding?
Theoretically, and I am confident this has happens fairly often, two people who are both armed (guns holstered) and get into a shoving match without anything else happening. In this example, if one of them reaches for their gun, they have elevated a non-lethal confrontation into a lethal one, and the other person is now legally allowed to go for their gun. If no one reaches for their gun, it is a non-lethal confrontation regardless of guns being present - same as if they each had a sheathed knife or sword.
To give you your due, however, the presence of guns (or any other lethal weapon) does heighten tensions as actions in the heat of a confrontation can be misinterpreted and someone quickly lowering their hand to their side can look just like reaching for the gun. That is an incredibly unfortunate example, though, again, this isn't an issue caused by SYG or remedied by removing SYG - with or without SYG a confrontation where lethal weapons are around (even when holstered) is much more likely to escalate to legal self defense due to misinterpretation of actions.
In a weird way, guns essentially remove the avoidance pillar in most self defense cases to begin with (making SYG redundant), as as Nybbler put it: you can't outrun a bullet. It would be a very unusual self defense case where the prosecution could reasonably suggest a person can safely run from a lethal confrontation with an attacker with a gun.
Where SYG would most likely apply is when the "attacker" has a melee weapon of some sort and the "defender" has a gun - but is also confident they could safely remove themselves from the situation yet still decide to use the gun instead. I would be surprised if the number of cases which fit this fact pattern or similar to this is incredibly small - making SYG a boogeyman. I'm not even really defending SYG laws as much as I am pointing out it is probably used effectively in a handful of cases annually and is being smeared by people who either have no idea how self defense law works or are lying for political/legislative ends.
LotsRegret
8mo ago
So IANAL, but I do enjoy law as a hobbyist - so take my answers with that in mind.
As far as I know, every state in the US now has it such that if you claim self defense and meet a very low standard, the burden goes to the state to disprove beyond a reasonable doubt that you did not act in self defense. The state does that typically by attacking at least one of the pillars, as if they can disprove any one pillar beyond a reasonable doubt, they win.
So for the scenario you laid out, it really depends - it would probably meet reasonable fear, but if the lady has done this once a week for years without anything coming of it, well then, probably not. If the door was well secured and locked, then that cuts against the imminence pillar - as she still needs to get through that door and close distance. However, if the door banger is armed with a gun, well, bullets can go through doors, so it may be a more reasonable argument on imminence.
Also, if the person performing self defense was in her house, it becomes a castle doctrine issue, not stand your ground, just fyi - but that is just one more thing people mix up.
At the end of the day, the defendant has to hope the prosecution can't convince 12 random people that the defendant broke one of those pillars beyond a reasonable doubt; and given the number of trials I've watched where I was shocked with the jury result given the legal and factual claims on the table, I'd always try to avoid using deadly force until I had no choice remaining, even if that means I am taking actions not required to meet the legal standard.
I know in that situation I would personally have retreated and called the police and had my gun trained on the door in case she breaks it down - but that doesn't mean what this person did was illegal, I just wouldn't bet on a jury to save me if I am firing on someone through my front door without knowing they were armed (it also breaks several of gun safety rules to do so, though those aren't laws, just best practices).
LotsRegret
8mo ago
Exactly.
SYG is being completely mischaracterized or misunderstood to be allowing things it just flat out doesn't cover. It only removes the requirement of fleeing from a deadly encounter if it is possible (and you listed several examples of it not being possible).
Franky, if I were on the jury I would probably have acquitted, just on the basis of how SyG works. As far as I understand (IANAL), the only requirement for self-defense under SyG laws is reasonable fear of death/harm. In this case, it really seems like the jury concluded there wasn't a reasonable fear because the killer was racist.
So SYG only removes the requirement that someone flee from a deadly force encounter, if possible - it still requires the person to have not of started the deadly force fight, be reasonable in the fear for their life, be in imminent danger of gross bodily injury or death, AND only matching deadly force with deadly force.
So self defense claims are based on five pillars:
- Innocence - you can't have started the fight
- Proportion - deadly force can only be initiated based on the threat of deadly force, not non-deadly force fights
- Imminence - the threat has to be occurring right now, not in the unspecified future
- Reasonable - a reasonable person would have considered the encounter a deadly force threat, even if it ended up being wrong after the fact (example: the gun someone pulled was actually a replica and not a working firearm).
- Avoidance - If possible, you must try and flee the deadly force threat before defending yourself.
All the state/prosecution needs to do is show the person is guilty of breaking ONE of those pillars to knock out a self defense claim - even if the other four are met.
Did the jury think you started the deadly force fight? Guilty.
Did the jury think you escalated the fight into deadly force? Guilty.
Did the jury think there no imminent threat? Guilty.
Did the jury think you were not being reasonable with your evaluation of a deadly force threat? Guilty.
Did the jury think you could have run away in the heat of the encounter? Guilty.
News and politicians frequently don't understand (or actively lie) about how self defense is determined in the law - not understanding that Stand Your Ground only removes the requirement of avoidance, but not the other four pillars. It isn't a pass for you to not be innocent, respond to non-deadly force with deadly force, react before the threat is imminent, or have your decisions not be reasonable.
If the news or politicians blame people saying "they feared for their life" on Stand Your Ground, that is arguing reasonableness, not avoidance - Stand Your Ground only deals with avoidance. This is an example of either not understanding self defense law or lying. If the jury felt the fearing for their life wasn't reasonable (or the person is lying about fearing for their life), Stand Your Ground wouldn't matter, as they'd fail the reasonableness pillar and be guilty.
Zimmerman was a classic example of Stand Your Ground being blamed - but the defense never argued it and didn't need to. When Zimmerman shot Trayvon Martin, he was pinned to the ground and being pummeled - there was nowhere to run to - so there was no need to argue he didn't need to run away (pillar five, avoidance), he physically couldn't.
What people are upset about is they feel stand your ground lets people go "looking for trouble" - Zimmerman should have minded his own business and not go looking for Martin - but that is just something that would be impossible to regulate in the real world. It also puts the cart before the horse: the attacker shouldn't have started a deadly force fight.
Are there situations where things are "awful but lawful"? Of course! If someone who couldn't walk without crutches attacks someone with a knife in a stand your ground state, instead of running to safety it allows you to stab them / shoot them legally, even if you could have easily escaped.
There are also the reverse cases wherein what should be an innocent person who used self-defense correctly only to be convicted because a good prosecutor can have the jury "Monday Morning Quarterbacking" the decision the person who used self defense made in the split second they had in a life or death fight that maybe they could have gotten away (even if the person being attacked didn't actually see a valid avenue of escape, so long as the jury felt they had one)
I'd suggest the vast majority of self defense cases never actually invoke stand your ground in a trial and it is just a boogeyman being used by people to explain increasing violence, but can't regulate a "mind your own business" ethic when something bad happens to a person who is a part of a class that gets special considerations from certain ideologies.
LotsRegret
9mo ago
Isn't there an old(?) joke about "Not asking a white supremacist the race of their significant other."
LotsRegret
1yr ago
It is easier to have a wife.
Well, if it helps, I am not on of those who believe in the right to own McNukes. I believe a reasonable argument could be made that at our founding we the people were generally expected to own and operate man portable rifles and pistols generally. Yes, I know warships were privately owned in the distant past, so one could make that argument and I don't have a truly principled reason to restrict them but I accept they are and don't advocate to own one.
How I believe the 2A should be looked at is what constitutes an "arm" in regards to the 2nd Amendment. Even before the US was a country, repeating rifles did exist even if in a rudimentary form so I would argue AR-15s style performance could be reasonably foreseen by our founders. Now I'd argue automatic weapons should be allowed, but I know that just isn't feasible, so you work with the world you have now - and people being allowed to own sporting rifles and pistols should be pretty uncontroversial for being covered under the 2A. The problem is many federal judges and state governments would immediately strip people of being able to own any arm if they had the chance - and we're fighting for even the basics of keeping the 2A available in many states.
When we look at other amendments for new tech, we look for analogs: the internet is just the printing press, but way better. AR-15s are just better repeating rifles. Drones are allowed to be owned, so are some explosives - so I will not be surprised if we see drone based terror attacks in the US very soon - and I'm not sure what can be done to stop it. The technology exists, isn't difficult to make, can't be easily restricted (compared to controlling Uranium and its enrichment), etc. it is only a matter of time. Some people already tried for the UFC event during flag day but got caught before they were able to do it.
The exceptions for the 1A, especially in regards to political and religious speech are darn near unlimited - and I can cause much more damage to many more people by advocating terrible forms of government (fascism, socialism) than I could as one man with a machine gun; but attenuated causes are harder for us humans to truly take the full weight of.
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