The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
    Donal's picture

    Is the Castle Doctrine for people that can afford castles?

    St Fagan's Castle

    I ran across this article yesterday, or one like it:

    The so-called “Castle Doctrine” - H.B. 40 - would expand current state law to allow individuals to use deadly force against an intruder, even if the intruder does not first threaten bodily harm to the individual. The bill passed [the PA House] with large bipartisan support, 158-39, and is headed to the state Senate for consideration.
    ...

    The bill passed last Tuesday by the House would allow the use of deadly force against an intruder who enters a home or vehicle in an unlawful and forceful manner.

    Under current state law, individuals are allowed to use deadly force in self-defense if they are threatened with death, serious bodily harm, or kidnapping. They are also allowed to use deadly force to protect other individuals from the same risks.

    Current law also requires an individual to retreat from the threat before using deadly force if the individual is in a public place.

    Mr. Perry’s bill would remove that requirement, allowing an individual to use deadly force if the individual has a right to be in the place where he is attacked and if the individual has a reasonable suspicion the attacker intends to commit serious bodily harm.


    Of course that would be a state law. Self and home defense represent the baseline of belief in gun rights. During martial law in the aftermath of the Katrina flooding, gun rights advocates' worst fears came true as authorities seized legally-owned weapons from panicked residents desperate for the protection those weapons offered. (At the same time, gun control advocates' worst fears came true as gun owners in a rich white enclave reveled in shooting at blacks seeking relief stations.)

    Several state governments responded by passing laws, state laws, guaranteeing that martial authorities could not ever seize guns from citizens again. On a more personal level, many national guardsmen have pledged never to seize personal weapons, too. (A few people, but too few, were prosecuted for shooting down unarmed refugees.)

    But those are only state laws, which is why everyone was watching how the Supreme Court decided the Second Amendment cases DC v Heller in 2008, and McDonald v Chicago just this year. With a conservative majority in the court, one would have assumed that both cases would be slam dunks for gun rights, but as it turns out they were both very cautious decisions. After winning his case, Heller still couldn't get a permit in DC (because he had a bottom-loading semi-auto). McDonald already had his firearm owner's ID, his classroom training and range time, but last I read he was still embroiled in the Chicago registration process.

    Neither Heller nor McDonald advanced the idea that governments "shall issue" gun permits rather than "may issue" gun permits. Shall issue means they have to have a compelling reason to deny me a permit; May issue means I have to have a compelling reason to get one. Even though the Second Amendment is now incorporated to affect state law, as written it doesn't unless the state courts specifically invoke it.

    Why the restraint? Maybe the slam dunk would have been too blatant. Slate offers an argument that the Supreme Court avoids obviously servicing right-wing interests to preserve its balanced appearance.

    Watch as We Make This Law Disappear
    How the Roberts Court disguises its conservatism.

    Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.

    How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? The answer is that Roberts is a brilliant magician. He and his four fellow conservative justices have worked some classic illusionist tricks to distract us from seeing the truth. Roberts is likely the first chief justice to understand that the message matters as much as the outcome. He has played his role with consummate skill, allowing the law to shape-shift before our very eyes, even as he and his fellow conservatives claim that nothing is happening.


    I don't disagree with the idea that the Court stacks the deck, etc. to make the sort of laws their narrow majority wants to make, but while the majority has a conservative agenda, I am leery of reducing every issue to left vs right. Roberts, Alito and their three brethren are conservative, but it is clear from Citizens United that they are even more dedicated to representing the wealthy class. The Slate article only briefly mentions DC v Heller and McDonald v Chicago, but I see McDonald as a sly triumph of federal incorporation, hence federal authority, not of gun rights. The wealthy know they will always be able to have guns, so gun rights don't really matter to them. They have however, long been afraid of poor minorities with too many guns:

    McDonald v. Chicago: Five Takes (Abstract of Word File)

    Even before the Civil War, some states amended their state constitutions in order to disarm free blacks – Tennessee, for example, amended its constitution to provide that the right to keep and bear arms, previously extended to all freemen, extended only to “free white men.”  But after the Civil War, with the antebellum system of social controls aimed at blacks scrapped, the Southern states proceeded to disarm the newly enfranchised former slaves as rapidly and thoroughly as possible, as a step toward the gradual elimination of as many other civil rights as possible.


    While the Heller and McDonald decisions establish the Second Amendment as normal constitutional law, they specifically do not overturn the innumerable local restrictions and regulations that make owning guns in urban areas difficult, expensive and unlikely for the average city dweller. Those restrictions never used to matter much to rural and exurban gun owners in shall issue areas, but now that more white people are moving to the cities, either for the lifestyle or the jobs, some of them want to own guns in the city, too. But nearly every Mayor, DA and Police Chief in the large cities is in favor of strict gun control. While the Supreme Court delivered a symbolic victory to gun rights advocates, it remains to be seen if anything has really changed.

    Comments

    I've been mulling this over since I read several hours ago. There's a lot to digest. The Supreme Court decisions of late have me very nervous about the fate of Constitutional protections I have probably always taken for granted. But what strikes me most is the Pennsylvania bill. How is it okay to shoot somebody, just because they come in your house? That sounds like an idea the unintended consequences of which legislators haven't thought through. Hate your brother-in-law. No problem. Just invite him to your house, shoot him, and claim he was threatening you. Who cares if he didn't pull a gun. In Pennsylvania, you're in the clear. 


    I suspect you'd need proof he was breaking in, but I also wonder about the middle ground between defending oneself and family and appointing yourself judge, jury and executioner.


    If you claim he was breaking in, and he's dead, the prosecutor has to disprove your claim, no? And his best witness is dead. I suspect you'd walk.


    This isn't so much about gun rights as it is about loosening up the circumstances under which people can use deadly force.

    I'm very wary of expanding the definition of "self defense" beyond, you know, defending oneself from an imminent threat.

    If anything, these laws make me warier of gun ownership, since gun owners are being indemnified for reckless use of their guns.